Ethics of Citizenship

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William A. Barbieri Jr.

Ethics of Citizenship

Immigration and Group Rights in Germany

Duke University Press Durham and London 1998

© 1998 Duke Universiw Press
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Because of Gabriele

Contents

Preface be

Introduction
“Guestworkers” and the Ethics
of Political Membership i

Chapter One
The Making of Boundaries 7
Toward a History of German Membership
* The B irth of the Migrant Worker
Minority in Germany * The Current
Problem: Three Types of Subordination

Chapter Two
Membership Debates 38
The Players * Three Conceptual Debates
* Three Policy Debates * Five Conceptions
of Political Membership

Chapter Three
PoUtical Anthropologies 77
A Methodological Excursus * Five Politi¬
cal Anthropologies * Toward a Balance

v'iii Contents

Chapter Four
Inequality, Nondomination,
and Human Rights 1 1 2
Naturalism and Political Membership *
Walzer on Membership * Political
Membership and Human Riphts * A
Normative Theory of Political Membership

Chapter Five
Citizenship and Group
Rights 147

Political Membership for Permanent
Residents * Equality and Group Riphts

Notes 173
References 203

Index 223

Preface

I’ t is now a commonplace that in the wake of the Cold War the
new world order has become increasingly shaped by the politics
of ethnic, national, and racial identity. Yet, all too little reflection
has been devoted to the lineaments of the political and moral
. challenges presented by this development. There is a pressing
need to increase our understanding of the ethical dimensions of the
diversity that has come to characterize contemporary societies. Indis¬
pensable to this effort are sustained exercises in applied ethics focused on
specific cases. Such is the role envisioned for this book.

No study of the ethics of diversity can ignore the central significance of
modern citizenship. Although this institution may be evolving, its divi¬
sion of the world’s population according to membership in states con¬
tinues to constitute the basic political and legal reality within which the
rights and wrongs of interactions among collectivities are formulated
and contested. Equally important, citizenship itself serves as a primary
basis of identity, one that has become imbued with its own correspond¬
ing set of moral meanings. For these reasons, citizenship forms one of
the poles of analysis for my inquiry.

The other pole is the notion of group rights. In a certain sense, group
rights are inseparable from the basic idea enshrined in citizenship —
especially nation-state citizenship — of the self-determination of peoples.
More germane to present-day debates, however, is the understanding of

X Preface

group rights embodied in multiculturalism — the belief that ethnic or
cultural plurality should be respected and, where appropriate, legally and
politically protected. Group rights in this sense appear to cut against
citizenship in two ways: From the point of view of the citizenty as a
whole, they seem to imply factionalism, while from the point of view of
the individual citizen, they may smack of collectivism. This apparent
conflict, however, is belied, or at least ameliorated, by an underlying
commitment to equality and human rights that unites the ideals of dem¬
ocratic citizenship and group rights. That, at any rate, is part of the
argument of this book.

The setting for the ethical analysis presented here is the Germany of
today. In its ver}^ public struggle over how to deal with “guestworkers”
and other migrant groups, in its rapidly growing diversity, and in its
pronounced preoccupation with problems of national identity, Ger¬
many pro\ddes an instructive case for exploring the ethics of citizenship
and diversity. This is not to say, however, that the German case simply
provides a concrete context for the presentation of an abstraa thesis or
for the examination of a problem generic in its outlines. Applied ethics
takes its shape as much from the particulars of its subject matter as it does
from the theoretical concerns that guide it. As a result, not only the
structure of this study but to some extent its conclusions emerge from
the specific features of the discourse surrounding the area of collective
activity I designate as German membership policy^

All the same, there remains an overarching concern that guides the
inquity presented here: How, ethically speaking, do communities con¬
stitute themselves!’ On one level, this question calls for social analysis of
the sort that is requisite for any serious work in applied ethics. To this
end this study attempts to trace the mechanisms and history of the for¬
mation of communal boundaries in German society^ At a deeper level,
however, this question requires reflection on a constellation of norma¬
tive issues having to do with what I would call constitutive justice (as
opposed to the commutative, distributive, and retributive varieties).
Who is entided to belong to a political — or moral — community.^ In
what ways? On what basis? Achieving a measure of clarity in how we
think about such matters is, in the rapidly changing world of the present,
a task of no litde moment. If the account I present of human rights.

Preface xi

equality, and the morality of membership contributes in some small way
to this goal, this book will have more than fulfilled its purpose.

In the process of writing, I have incurred debts to many people in
several countries. Heading the list of those I would like to thank for their
guidance, advice, and assistance are Margaret Farley and Ian Shapiro,
who, in their distinctive ways, gave challenging support to the project in
its first incarnation as a dissertation in Yale University’s ethics program.
Prof. Dr. Jurgen Fijalkowski of the Free University of Berlin very gra¬
ciously served as an additional advisor and critic for the parts of the study
dealing with the German case. Helpful comments on sections dealing
with their areas of expertise were provided by Helmut Walser Smith and
Steffen Angenendt. I also profited from conversations with Yasemin
Soysal, Ertekin Ozcan, Liselotte Funcke, Barbara John, Almuth Berger,
Jim Grossklag, and Michael Walzer, as well as from discussions with
members of the Political Science Department at the Hebrew University
of Jerusalem and the Council for Research in Values and Philosophy at
the Catholic University of America, where some of the ideas of the book
were presented. Finally, I benefited from the suggestions of Valerie MiU-
holland at Duke University Press and several anonymous reviewers.

For financial and logistical support, I am grateful to several organiza¬
tions. A Mellon Fellowship from the Institution for Social and Policy
Studies at Yale University and a stay at the Free University of Berlin’s
Otto Suhr Institute sponsored by the Friedrich Ebert Foundation en¬
abled me to carry out my initial program of research. Additional phases
of the project were made possible through grants from Yale’s Council on
West European Studies and the Orville Schell Center for Human Rights,
as well as a Yale Dissertation Year Fellowship. I received invaluable help
from the staffs of various archives and libraries in Berlin, Bonn, and
Zirndorf. The production of the manuscript was facilitated by a research
grant-in-aid from Catholic University.

Lastly I wish to thank the club Tiirkspor-Berlin for the opportunity to
have extended my soccer career in the context of my work.

Introduction

“Guestworkers” and the Ethics
of Political Membership

Our citizenship — official membership in a particular
political commrmity — constimtes a part of our identity
that we seldom have cause to question. It is true that the
passport we possess determines a great deal: whether
we may enter and leave a country at our wiU, live and
work there, own and inherit property, vote and serve in political office;
whether, where, and when we may be asked to stake our lives in military
service. Citizenship, too, greatly affects our economic prospects, for the
right to live in one of the world’s wealthy societies is a valuable com¬
modity indeed. Yet because it is something that we usually acquire at
birth, we tend to think of our citizenship as a given, objective aspect of
our existence, much like our gender or religion or ethnic character. This
assumption is made as often by the politicians who shape the conditions
of our society as it is by the philosophers who theorize about them. In
acmality, however, political membership is a human creation, a stams we
grant to ourselves, and given its importance we might reasonably ask
why it is given to some and not to others. The question is posed par¬
ticularly sharply in the challenge to modern nation-state citizenship pre¬
sented by transnational migration and its effects.

In the past few decades, many states have wimessed the formation of
new minorities of long-term resident aliens who live without some of the
basic rights associated with citizenship. These minorities consist pri¬
marily of migrant laborers — “guestworkers” — and their family mem¬
bers, although more and more they have come to include illegal immi¬
grants and refugees fleeing perils of various sorts: focused government
persecution, wars, namral and man-made disasters, and the debilitating

2 Ethics of Citizenship

effects of povetlA' and other forms of structural disadvantage. The mi¬
grants have settled — often permanently — and participate in the daily life
of all the leading democratic societies of the West; nonetheless, in most
cases tliey ha\’e not found full acceptance as members of these societies.

This is not to say that they exist wholly without rights in their host
countries. These “denizens”^ often enjoy an assortment of civil, social,
economic, and cultural rights comparable to those of their neighbors.
Still, in one deeply important sense they remain apart; Because they do
not possess citizenship and, indeed, often find it effectively denied them,
they are blocked from pohtical membership — the possession of the basic
civil and political rights that make up the core of belonging in a political
comm.uniw.^ They are consigned instead to a sort of political limbo, a
perpetual state of partial membership and disenfranchisement in which
their powerlessness to promote their interests magnifies any inequalities
or discrimination they may face in other spheres.^ In this sense these
migrants are akin to other groups in recent histor)', such as the blacks
under apartheid in South Africa and the Palestinians in the Israeli-
occupied territories, that have been assigned a subordinate membership
status in the political and social ordering of the society in which they live.

Wh\' long-term resident aliens are included in many spheres yet re¬
main barred from political membership is in one sense a historical ques¬
tion,^ and in another sense a political question.^ At the same time, it is an
ethical question,^ for the subordination of this population prompts us to
ask: Is a status of permanent partial mcmhcvshiTp justifiable for these (to
some extent uninvited) groups On what normative basis ma}' they be
denied political membership? Answers to these characteristically moral
questions depend in turn on more fundamental considerations: What
rational grounds do states have for excluding people? Who is entitled to
full membership (i.e., citizenship) in a pohtical community, and on
what terms?

Because migration is, at root, a global phenomenon, most of the prob¬
lems it poses may ultimately be addressed only by concerted efforts on
the part of the international community aimed at establishing peace,
promoting development, and protecting human rights. In the current
world system, however, the political exclusion of migrants constitutes an
exception to this rule. Who receiv'es political membership and how are
issues goN'erned by the citizenship, immigration, and naturalization pol-

Introduction 3

icies of individual states, which jealously guard a sphere of authority they
regard as touching on the very core of their right to self-determination.

Within states, the persons entrusted with the formation and revision
of these policies may not regard their task as an ethical one; instead, they
may see questions of citizenship as problems to be resolved with refer¬
ence to objective legal standards or according to “natural” criteria deal¬
ing with ethnic or national identity. Whether they recognize it or not,
however, poHcymakers faced with questions regarding political member¬
ship are always required to make judgments on a basic set of moral and
political issues: Who should be allowed to enter the country Should
political membership be based on nationality or residence!* Is assimila¬
tion to the dominant culture an acceptable precondition for the exten¬
sion of political rights!* What is a fair price for citizenship Moreover,
arguments and concrete proposals regarding such issues necessarily pre¬
suppose views about the nature and proper scope of political organiza¬
tion, the character that membership should assume, and the appropriate
normative basis for distributing this membership. And these views in
turn reflect fundamental assumptions about the nature of human beings.
The premise of my treatment is that it is with reference to these underly¬
ing moral commitments that competing political claims concerning
membership are best compared and criticized.

This book thus aims to provide an ethical analysis of modern citizen¬
ship. Citizenship, of course, has two basic senses that in the present day
remain only tangentially connected. First, it refers to a status employed
to classify people, a form of membership, a legal and political identity we
often refer to as nationality. Second, it indicates an ideal or virtue or type
of responsibility involving public-spiritedness or patriotism. Our con¬
cern is with the formal rather than the explicitly ethical dimension of
citizenship.^ But this is hardly to say that the status of citizenship is
devoid of moral content. It is rather to note that the focus of our inquiry
is on the group of moral issues relevant to — and indeed inextricable
from — citizenship viewed as a question of social structure, as opposed to
a question of individual morahty.

Among these issues, the matter of rights is certainly a prominent one.
As a powerful instrument for drawing boundaries and shaping interac¬
tions within and among contemporary societies, citizenship leaves a
deep imprint not only on moral identity but also on the web of struc-

4 Ethics of Citizenship

tiircd interpersonal relationships most commonly described today in
terms of rights and duties. Because citizenship mediates in this manner
among the concerns of persons, social groups, and entire political com¬
munities, it addresses the rights not only of individuals but also of vari¬
ous collectivities. Beyond this, the issue of the basis of citizenship is
intimately bound up with questions regarding the relations between
moral and legal rights and the very foundations of law. For these reasons
an ethical examination of citizenship is also an examination of rights —
civil and human, of individuals and groups.

It is likewise an examination of the nature and basis of equality, for
central to the notion of citizenship is the idea of relations among equals.
Citizenship policy, augmented by the workings of the international
economy, provides the primarv' means for the social construction of
equal and less-than-equal relations among persons and groups in the
modern world, most evident in the wide gaps in socioeconomic and
political conditions that exist among states. At the same time, the nega¬
tive connotation of “second-class citizenship” in contemporary political
discourse illustrates a broad acceptance, at least in democratic milieux, of
equality of citizenship as a norm of justice. Equal citizenship takes into
its compass not only suffrage but also civil rights and a basic quality of
life for all groups within a state. Its treatment of equality and rights
distinguishes this book as a study in the ethics of political community.*

My exploration of the ethical issues posed by long-term resident aliens
focuses on a particular case, that of the migrant worker minority in the
Federal Republic of Germany. The German case provides a particularly
clear example of the problems of citizenship, rights, and equality raised
by the political exclusion of foreign residents. Of the roughly five million
members of Germantys migrant worker minority (following reunifi¬
cation, about 6 percent of the population), nearly aU are permanent
residents. Due largely to the restrictive nature of Germantys political
membership policies, however, a negligible few have become German
citizens. As a result, these residents are locked into a subordinate role in
German society, in which they are greatly hindered in their efforts to
combat the various forms of inequality and discrimination they face. The
general consensus among German policymakers is that this situation is
not tenable in the long run. Disagreement prevails, however, as to what
an appropriate solution might be. Through my discussion of German

Introduction 5

debates on such topics as voting rights, cultural homogeneity, and dual
citizenship, I seek to provide an empirical grounding for my analysis of
the ethical aspects of political membership.

Based on my treatment of these debates, I provide a typology of influ¬
ential normative orientations toward political membership in modern
states, ranging from an extremely exclusive view to an extremely inclu¬
sive one. In explicating and criticizing these competing views, I attempt
to show that they are based on incomplete pohtical anthropologies. I
then set about developing a normative theory of pohtical membership
that incorporates a more balanced understanding of the significance of
human communality, individuality, and universaUty for pohtical life.

The theory I present is in some respects based on Michael Wafer’s ac¬
count of the just distribution of membership in Spheres of Justice ( 1983 ) .
Unlike Walzer, however, I argue that decisions about pohtical member¬
ship should be governed by considerations of human rights. This fohows
from the pecuhar nature of membership in modern states. After provid¬
ing an account of human rights grounded in a prohibition against domi¬
nation, I argue that established residents of states have a right to citi¬
zenship and moreover, in democratic states at least, a right to equal
citizenship.

Equahty in this context, I further contend, should be understood to
apply to groups as weU as to individuals; for this reason, equal citizen¬
ship for new minorities wih often entail not only pohtical inclusion on an
inchvidual basis but also the provision of various sorts of group rights.
This perspective carries with it some fairly concrete implications for
directions in which a more just pohtical membership policy in Germany
might be sought.

The book is divided into five chapters. Chapter i is devoted to an
account of the historical context informing contemporary discussions of
pohtical membership in Germany. In it I provide a set of historical theses
regarding German membership, foUowed by a description of how the
migrant worker minority became established and an examination of the
ways in which this minority is subordinated. Chapter 2 consists of a
characterization of the policymaking process in Germany coupled with
an analysis of a number of specific “membership debates” concerning
Germany’s migrant minority. Based on this analysis I distinguish five

6 Ethics of Citizenship

basic normative orientations toward political membership. In Chapter 3,
after a brief methodological discussion regarding political anthropo¬
logies, I criticize these orientations with reference to their empirical
suppositions, internal consistency, and assumptions about the political
nature of human beings. Chapter 4 contains a proposed alternative ac¬
count, provided in wo parts, of just criteria for the attribution of politi¬
cal membership: first, a critical exposition of Michael Walzer’s theory of
membership and second, a constructive argument about modern politi¬
cal membership, human rights, domination, equality, and consent. In
Chapter 5 I spell out the understanding of equal citizenship and group
rights that follows from this argument and offer some reflections on the
implications of my theory for the German case. The migrants, I propose,
not only should be extended the individual political rights accompany¬
ing formal citizenship but also should be granted certain group rights in
the economic and cultural spheres. Along with m\' suggestions, I offer
some observ^ations on the limits of the view I have presented and on the
future of political membership. I conclude that despite the ongoing evo¬
lution of political structures, the institution of citizenship in indepen¬
dent and sovereign states is likely to maintain its central importance to us
for some time. For this reason, it is all the more important that we persist
in subjecting the attribution of citizenship to rigorous ethical scrutiny.

Chapter One
The Making of Boundaries

Ithough they are as a rule born and raised in Germany and
fluent in the language, the children of migrant workers are in
many ways less than the equals of their classmates. A class
/ field trip to Switzerland, for example, may be out of

bounds for them for reasons having to do with citizen¬
ship, residence permits, and visas. Their history and cultural heritage
receive little or no attention in textbooks that chronicle the accomplish¬
ments of the German Volk. Their chances of eventually finding an ap¬
prenticeship or winning a spot at a university, statistics show, are slim.
Beyond the classroom, the subtle and not-so-subtle forms of discrimina¬
tion, the poor social and economic possibilities, and the administrative
hurdles and legal barriers do not cease. In the only world they know,
these children remain outsiders, their existence marked indelibly by the
marginalized status of the foreign resident.

Any attempt to understand how and why this marginalization has
occurred must begin in a historical vein. The boundaries that have come
to separate migrant worker families from other German residents have
emerged through the conjuncture of two processes: the complex def¬
inition over the past several centuries of what it means to be German,
and the more recent formation of the migrant worker minority in Ger¬
man society. Through an analytical treatment of these two processes and
the forms of human agency they have involved, we may gain a picture of
the norms and structures that have enabled the establishment of a subor¬
dinate status for Germany’s foreign residents.

8 Ethics of Citisxnship

Toward a History of German Membership

An analysis of the historical process through which membership in the
German context has been defined necessarily begins with the question,
WTiat is German membership? In answering this question, the first step
must be to establish the meaning of its terms. Logically, the notion of
membership suggests an entity in which membership is held by a group
of persons satisfying a given set of criteria. Much depends, therefore, on
which entity one specifies and on which criteria, as well as on who does
the judging. Membership may be ascriptive or voluntatyq it may also be a
matter of degree. The case of German membership provides an excellent
illustration of these inherent complexities. Is a German one who speaks
German as his or her native language? One who has German forebears?
One who was born on German territory? One who lives in a German
society? One who identifies him or herself as German? One who pos¬
sesses German citizenship?

Each of these criteria plays an important role in the context of this
study, for each points to a crucial aspect of what we might call German
belongingness — the normative basis for the distribution and denial of
those goods and burdens associated with being German. Historically,
who has counted as German has been shaped by a number of diverse
factors, among them the development of an ethnic and eventually a
national German consciousness,^ the formation of a succession of dis¬
tinct German political entities, the economic transformations and migra¬
tions associated with the transition to industrial capitalism, religious
conflicts,^ the establishment of compulsory education and the standard¬
ization of a German national culture, the growth of a German citizen¬
ship with an accompanying administrati\'e apparatus, the presence at
times of other ethnic minorities in German states, and the construction
of a modern welfare system. A full account of the complex interplay of
these factors, in short, a history of German membership, would take us far
afield. Nonetheless, some such account is essential for an inquiry' into the
nature of membership in Germany today. What follows is an oudine of a
set of historical theses regarding German membership and then, to illus¬
trate the theses, a selective overv'iew of developments bearing on mem¬
bership in the last nvo hundred years of German history'.

I . German membership is best understood for political purposes in tertns of

The Making of Boundaries 9

three overlapping! but distinguishable communities: the German ethnic proup
or Kulturnation^ the German state society,^ and the German citizenry. These
three strands of German membership have informed one another con¬
siderably and at the same time have remained distinct. Their distincmess
is perhaps best captured with reference to one of the distinguishing
aspects of the concept of membership itself: Membership implies both
inclusion and exclusion, and we may always ask, of whom and on what
basis

- The first membership group, the ethnocultural nation, diflFerentiates
among persons on the basis of ethnicity. Although ethnic identity is a
notoriously intractable topic,^ we may say provisionally that this group
includes those who speak German, have a German heritage, are of Ger¬
man stock, and are identified by others and by themselves as Germans.
Excluded as a rule are those of other ethnic or national groups: the
French, Russians, Turks, Native Americans, Kurds.

- The second membership group, the state society, differentiates on a
structural basis. Its members are included in various ways and to dif¬
ferent degrees, but in general they participate in society, enjoy rights, and
receive benefits, all in economic, social, and political ways.® State so¬
cieties are administratively and territorially distinct from other states and
may deny admission and residence to members of other states.

- Membership in the German citizenry is defined in terms of both as-
criptive identity and common political commitment. The community of
German citizens has the character of a club open only to persons belong¬
ing to both the ethnocultural nation and the state. Eligible are those who
take part in the life of the state society, who belong to the German
cultural group, and who are prepared to assume the responsibility of
political control and to sacrifice their lives if necessary for the defense of
the German state. This group excludes German ethnics in other coun¬
tries and members of German society who lack the requisite German
ethnocultural membership. The definition of German citizens is, as we
shall see, in some ways an unhappy compromise between the other two
groups.

2. Historically, these three proups have been formed throuph interrelated yet
analytically distinct processes. The context in which these groups interact is
the modern system of nation-state capitalism, and it follows that their
nature and scope have been decisively shaped by the political, social, and

10 Ethics of Citizenship

economic processes tlirough which our present global society of sov¬
ereign nations has emerged. The rise of nation-states has been the topic
of a considerable body of scholarship, which may be drawn from to
show how each of the three German membership groups has undergone
its own process of development — for the first group, a process of nation¬
building, for the second group, of state-building, and for the third
group, of what I call “dtyto-building” — the construction of a distinct
community of citizens.

- Nation-building in Germanv has thus involved, independent of a fixed
political basis, the origins and growth of a sense of ethnic community
and shared culture, as well as the definition of enemies and perceived
threats to a unified German identity.

- German state- building has been characterized by the gradual but thor¬
oughgoing establishment of centralized control over a territory^ and pop¬
ulace, through military' and other coercive means, the construction of a
unified market and a highly industrialized economy, the ambitious pur¬
suit of state and ethnonational interests in foreign policy', and the even¬
tual construction of a comprehensive w'elfare systems.

- The central dy'namic in the German process of building has

been the development of a distinction between natives and aliens {In¬
lander and Ausldnder) and the evolution of an accompanying set of
privileges and controls.

These three processes have of course been closely intertwined. For
example, the case of nation-budding has been aided decisively by the
administrative homogeneity and compulsory education required for ef¬
fective state-building. Cultivation of the German language has been of
central significance to all three groups. Each, however, has exhibited
individual features that it is important to identify in order to grasp the
tensions inherent in German membership policy' today.

Nation-Building

WTien people speak of Germans, it is usually taken for granted that the
word refers to a concrete, identifiable group, be it a kinship organiza¬
tion, a community of nativ'e speakers, or a group of initiates into a
cohesive cultural entity. Particularly when employ'ed in contrast to other
comparable groups — Turks, for instance — references to Germans seem
to hat'e a relatively clear meaning and fixed referent. At the same time.

The Making of Boundaries 1 1

the problems associated with concepts such as culture, identity, race, and
ethnic groups are well known.'’ And although the attribute “German”
may seem to indicate an objective, ahistorical category, the elusive nature
of this concept becomes clear as soon as borderline cases, such as black
Germans or German-Soviet Jews, are examined.^ The German ethnic
classification has not always been distinct, but is rather a historical prod¬
uct that even now encompasses a highly diverse group. The degree of
homogeneity and unity responsible for the coherence of the term “Ger¬
man” is the outcome of a long process of cultural and political inclusion
and exclusion, of identification and differentiation — of, in a phrase, eth¬
nic boundary making. Such boundary making, problematic though it
may be, is a universal phenomenon. The hallmark of the German process
is that its cultural and political aspects have been largely independent of
one another.

Thus, the sense of ethnic identity and commimity among Germans
considerably predates the existence of the modern German state. On the
one hand, we can identify a cultural entity based on a common language,
certain general traditions, and the occupation of a specific territory in
central Europe. The collective consciousness of this group has been to a
great extent created by intellectuals. On the other hand, this territory
was marked by a number of different types of political organizations, and
it was only relatively late, after comparable developments had occurred
in France and England, that a modern nation-building process character¬
ized by a widespread attempt to create a homogeneous national culture
was launched. The characteristic goal of nation-building is to “increase
the loyalty, commitment and acquiescence” of the people in order to
strengthen community bonds for purposes of both defense and political
control (Tilly 1975b, 78-79 ) and is pursued through the standardization
of language, religion, and education, as well as through the writing of
history. This state-initiated process has gone quite far in Germany, but it
has not wholly replaced the ethnic basis of identity, evidenced by the
continuing recognition of German minorities left out of the nation¬
building process but nonetheless identified as German.

While the term “German” referred originally to a speech group dis¬
tinguished from Latin speakers, most accounts locate the cradle of Ger¬
man national consciousness in the Holy Roman Empire of the German
Nation founded by Charlemagne. The political consciousness that de-

1 2 Ethics of Citizenship

velopeci at this early point was, however, as Werner Conze argues,
decidedly not a national consciousness in the modern sense of nation¬
states (1985, 27). Rather, the political framework in which German
consciousness found expression was that of an empire within which
Germans as a people were distinct from other component groups. More¬
over, the sense of identity as German was not particularly strong in
relation to other memberships. The climate of the times did not rein¬
force this sense, for as Charles Tilly notes, the Europe of the fifteenth
centur)' was in the degree and scope of its homogeneity comparable only
to imperial China, while the primary' memberships and bases of loyalty
w'ere overw'helmingly local and religious (1975a, 18). Following the
Renaissance and the Reformation, a gradual increase in ethnonational
German consciousness occurred (Conze 1985, 28-30), yet by the mid¬
dle of the eighteenth century' the notion of a distinct German nation had
become centuries removed from any organizational reality.

At this point, however, two important de\'elopments in German iden¬
tity' occurred, largely in response to developments in France.® While the
spread of the universal values of the Enlightenment culminated in a
revolution in France that heralded the birth of a modern political con¬
ception of “nation,” early critical reflection on the notion of “nation” in
the German principalities tended to emphasize the cultural aspects of
nationhood, as reflected for example in Herder’s definition of “Fo/^” or
Schiller’s notion of an “inneres Reichr The prex'ailing intellectual en¬
vironment, which to that point was exemplified by the benign cosmo¬
politanism of Goethe, began increasingly to celebrate the particularity,
the nobility, of being German. This growing national consciousness was
abruptly politicized following Napoleon’s conquest of Prussia in 1806. A
surge of patriotic sentiment in reaction to the French occupation glori¬
fied German cultural particularity and portrayed it as being suppressed
by the alien, universalist ideas of the French regime. A seminal role was
played in this process by Fichte’s Reden an die deutsche Nation, which, in
its evocation of a suppressed German spirit (“To have character and to
be German are clearly synonymous”; cited in L. Hoffmann 1990, 77 [my
translation] ), helped mobilize resistance to the French, culminating in
the War of Liberation from 1813 to 1815.^

In the wake of liberation, the prior individual German states were
restored. This restoration, however, did not prevent the new'ly invigo-

The Making of Boundaries 1 3

rated sense of collective purpose from developing further through move¬
ments in philosophy and literature. Romantic writers, in their emphasis
on feeling over rationality, on the significance of “thick” tradition and
cultural unity over hollow, soulless universalism, at once crystallized and
valorized a new German identity. Thinkers such as Friedrich von Sav-
igny, Leopold von Ranke, and G. W. F. HegeF*^ contributed to a concep¬
tion of the German nation as an individualized organic entity, a Volks£[eist
expressed in a unique language and set of customs. The state was
required as the expression of the organic spirit of the people, its logical
outcome; but the people were prior. While the military, political, and
geographic realities of central Europe worked against the formation of a
comprehensive German state, as the fate of the 1848 revolution illus¬
trated,^^ Romantic notions of the ethnocultural unity of the German
people formed an ideology that eventually served as a legitimating basis
in the formation of the German nation-state.

With the founding of the German Reich following a second vic¬
tory over France, a new era of nation-building as a concerted effort to
homogenize the population and culture began. In the new Prussian-
dominated state, German national feeling was harnessed in an effort to
build a unified and loyal populace (Kocka 1985). As a result. German¬
ness was intimately linked to the military buildup and foreign policy
adventures of the late nineteenth century. The presence of minorities in
German territory, in particular the Poles, was exploited to sharpen the
sense of being German and to fuel a need for ethnic unity. This was
reflected in the energetic prosecution of the Kulturkampf against the
Catholic influence in Germany, as well as in the alarmed identification of
an UbcTfremdun^spi^ahr (the danger of too strong a foreign presence)
and the widespread implementation of Germanization policies directed
against ethnic minorities (Hagen 1980, 120-50; Herbert 1986, 24-25;
Woydt 1987, 1 7- 1 8 ). At this point, the prevailing notion of Germanness
was not simply a matter of language, birthright, tradition, or place of
residence, although each of these played a role. Rather, the ideas of
intellectuals describing the German Volk as a sort of cohesive reahty unto
itself, or at least a prospective reahty that was to be gradually imple¬
mented through the cultural consolidation of a German pofity, had be¬
gun to take root. Being German was a question of quahty, and other
ethnic or national groups in German society were often distinguished as

1 4 Ethics of Citizenship

lesser or inferior (Lepsius 1985, 51 ). In effect, following the creation of
the German Kaiserreich, a cultural group was continuously constructed
in which Germans were not simply members but also components of a
higher ontological unit, the people (Bauer 1975). The sense of people-
hood led at the turn of the century to a volatile Pan-German movement
as well as to calls for the assumption of sovereignty over Austria. The
actual basis of belonging to the German ethnocultural group remained
intangible. Yet as Lutz Hoffmann argues, even if no German “people”
existed prior to political consolidation in fact, once the ideology of an
age-old, living Volk became internalized politically, such a national group
became a social reality ( 1990, 86).

Although social-democratic ideas long provided a counterpoint to
this ideology and began to exert a greater influence following the turn of
the centuty, the ruling political elements were able to develop the ideol-
og\' of the Volk relatively continuously. In the propaganda of World War
I, the conflict between a German culture with its own ideas and mores
and an encroaching coalition of enlightenment values emphasizing egali¬
tarian individualism and natural rights emerged again (Dumont 1986,
134). The German national identity at this point, according to Ernst
Troeltsch, took on a certain religious quality: “The ‘mystique of the
German state’ is a secularization of the religious conception of the state,
while the German idea of freedom is a secularization of the religious
sense of dut\^’ (1925, 96; my translation). The notion of a German
national state hence took on more and more of the weight of sentiment
originally assigned to the ethnic group and other memberships, and
attempts to establish a uniform national-cultural membership continued
following the failed experiment with democracy in Weimar Germany. In
Nazi Germany these attempts took on an explicitly biological nature and
culminated in efforts at racial purification through mass extermination
and other means. Attempts in the course of the German reconstruction
on the part of both the liberal-democratic and communist German states
to distance themselves from the tradition of German particularism went
only so far. The Kultumation remains the basis of political organization,
and reunification, with its slogan Wir sind ein Volk ( “We are one peo¬
ple”), has led to an invigorated sense of national identity and pride that
has defined itself further in opposition to the groups of foreign workers
and refugees now present in Germany.

The Making of Boundaries 1 5

To summarize, the process of evolution from a decentralized group
sharing certain common linguistic and cultural characteristics but with¬
out a common political or administrative base, into a relatively unified
community claiming a common heritage, culture, and destiny — and
even at times a collective Volks^eist—hdis occurred in a comparatively
short time as a result of considerable effort on the part of elites and in a
creative opposition to (and often at the expense of) other groups who
have provided antitheses to certain values affirmed as “German.” Military
events have played a decisive role. The overtaking of an initial process
of ethnic identification (nation-forming) by a concentrated period of
linking cultural unity to national political aims (nation-building) has
resulted in a consolidation of membership in a German nation based pri¬
marily on subjective characteristics. The composite member, the “Ger¬
man,” speaks German and has, among other things, a “German” blood¬
line, an identification with “German” culture and history, a “German”
pride and/or guilt, a “German” physical appearance, and a sense of
belonging to the “German” community and polity.

State-Building

The development of the state society as an organ of German membership
has occurred within a considerably shorter time frame than has that of
the German national identity, although as with the German ethnocul¬
tural nation, the modern German state drew on traditions substantially
predating its birth in 1871. Before thematizing this process, it is neces¬
sary to say something about what is meant by the state society as a
membership group. As used here, the term refers to a group of govern¬
ing and governed united by a set of differentiated institutions that order
and control life within certain territorial boundaries. A significant aspect
of this understanding is that membership in the state society is a struc¬
tural matter as opposed to a question of identification or recognition.
This is not to say that membership is wholly involuntary, nor, for that
matter, that it is always possible to determine in an objective sense who is
a member and who is not. StiU, to a certain degree the extension of the
modern mechanisms of state control has tended to render people its
subjects willy-nilly, even as it has given them a say in its development
through suffrage, interest groups, and the possibilities of mass politics.

In Germany, the development of a membership group defined by the

1 6 Ethics of Citizenship

state in this sense has naturally been intricately bound up with the pro¬
cess of building German national identity. The German case is distinctive
in that these two processes have often worked apart from or against one
another. The Prussian state was a subnational organization, and its ex¬
pansion into a nation-state never truly attained the original suprana¬
tional scope of the ethnocultural group; the post- World War II history,
including the present German identity conflicts ( for example, the “Ger¬
man Question” and the Historikerstreit) , provides a good illustration of
how state and nation have come in conflict. At the same time, of course,
the two processes have greatly reinforced one another — nation- building
in its function as a social cement necessary for loyalty to and effective
administration by the state; and state- building as a concrete focus for the
national pride of citizens and as a means for organizing the aspirations of
ethnic Germans elsewhere.

At root, the processes of nation- and state- building have produced
anal^ldcally separate collectivities that have evolved in comparable ways.
As with nation-building, central themes for state- building have been the
unification and homogenization of a German group on the one hand,
and the exploitation of foreign groups on the other — both for purposes
of differentiation and for satisfying the material requirements for budd¬
ing state control and a national economy. And as in the development of
national consciousness, the creation of the state has relied heavily on the
activities of elites and on militan' developments. A dynamic particular to
the state-building process has revolved around the distribution of power.
The German national state has long claimed a distinctive nature as a
Rfchtsstaat, a constitutional state. The building of this state has involved
a dual process of Verstaatlichung, the increase of the degree and per¬
vasiveness of centralized state power, and Verrechtlichun£f, the extension
of rights and privileges of members of state society. This process is
a common Western European development; in Germany, its specific
course has resulted in a comparatively rule-oriented and authoritarian
political culture.

In keeping with the federal nature of the German nation-state, state¬
building has occurred in t\\'o major steps in Germany. Like the process
of building national identin^, the construction of the German state
after 1871 drew on a prior tradition of state formation. Of the various
eighteenth-centur\’ states in German territories, Prussia was clearh' the

The Making of Boundaries 1 7

strongest. Yet before the Prussian state model took over a dominant role
on German territory, a number of separate organizations with diverse
state systems coexisted. The greatest contrast to the Prussian model was
provided by Catholic states in the south with strong traditions of par¬
ticipatory democracy. The German states varied as well in their economic
structures. But they had in common their successful restructuring of
power from a purely local to a more centralized level. By comparison
with other European states, local bodies of representative government
were undermined by the German princes to an extreme degree (TiUy
1975a, 22). This was accomplished in part through the administrative
establishment of memberships at a central level, coordinated by and
among the states, eventually through a treaty system. The dividing up of
the people was a function taken over from communities in order to carry
out state policies regarding problems at a high structural level such as
poverty. These memberships, and the services and obligations in terms of
taxes they defined, remained primarily at the individual state level well
into the history of the Reich.

In the Kaiserreich, this process was carried out on a broader scale and
dominated by Prussia through a period of rapid industriaUzation and
transformation of the economy. With the establishment of a set of con¬
solidated boundaries, a new membership unit was created for the state in
which a fixed, relatively liberal set of rights was established under Bis¬
marck’s constitution. However, this initial Verrechtlichun£i was accom¬
panied by the establishment of a pervasive system of control and extrac¬
tion formed by the alliance of Prussian military power-holders and the
landholding Junker class in response to eastern Germany’s need to com¬
pensate for its weak economic status (Rokkan 1975, 586). This alliance
provided the political and military basis for advancing the central project
of state-building, the bringing of territorial extremities under central
control. Stein Rokkan has helpfully identified four tasks that were essen¬
tial to the European state- building process: homogenization, penetra¬
tion, participation, and redistribution (570-75). Whereas he sees these
four processes as normally constituting consecutive phases, with the first
two emanating from the geopolitical center and the second two from the
periphery, in Germany’s case these processes occurred to a significant
degree contemporaneously, with the overall process dominated by the
center. Homo_0enization entailed nurturing a national culture that was

1 8 Ethics of Citizenship

bound to the political structure of the state through, among other
things, the standardization of education, language, and culture, and the
more or less forced assimilation of “non-German” social groups. Pen¬
etration consisted in the extension of state control into all levels of com¬
mon life, but above all the economic realm, through the construction of
unified legal and monetarv' systems and of a national market with fixed
boundaries. Participation — the. incorporation of the masses into the
functioning of the overall state system — occurred through the expansion
of suffrage and the acceptance, starting in the 1890s, of political parties,
interest groups, a labor movement, and other instances of popular mobi¬
lization. Redistribution — the implementation of “safew net” measures
and progressive taxation policies — was at first minimal but grew once
the assembly of a modern welfare system began toward the end of World
War I.

The construction of a unified state economy and the transition from
an agricultural to an industrial base were crucial developments in the
Kaiserreich. The establishment of boundaries defining a German market
necessitated government control of labor admissions and the distin¬
guishing of foreign workers from German workers; at the same time,
foreign workers played a critical role in the success of industrialization,
satisfying labor needs at a time marked by massive emigration to the
United States. At first, state control in this area focused on admissions
onlv, and the government w'as content to allow in a reserv'e population of
foreigners who remained permanently on hand to meet the fluctuating
demands for labor. Later, in the course of the transition from liberal to
organized capitalism as capital became more concentrated, the state be¬
gan to exert increasing control over the organization of the economy
(Bade 1987, 60-66).

During World War I, the German government exerted complete con¬
trol over the economy, establishing precedents that persisted afterward
in a number of spheres. A<dministrati\'e control of the labor market in
particular led, in conjunction with the worker movement, to an organi¬
zation of labor relations coupled with the provision of unemployment
insurance ( Bade 1984-85, 477-84) . This step toward the formation of a
welfare state was accompanied by limits on immigration and, in particu¬
lar, strict regulation of foreign worker admissions. As a result, a co¬
herent strategy' w'as dev'eloped for conditioning the flow of labor accord-

The Making of Boundaries 1 9

ing to the needs of the economy through government intervention
(Dohse 1985, 29-35). In effect, the reserve laborer population was
placed outside the state with an accompanying externalization of costs. A
growing set of administrative apparati marked the state expansion into
new spheres of common life, a trend that continued under the National
Socialist regime. The war economy under Hitler was also marked by
extreme centralization and Verstciatlichufi0. In the Federal Republic, in
contrast, the emphasis has been on Verrechtlichung. Considerable gains in
the area of participation have been made on the strength of a constitu¬
tion promoting basic human rights and a democratic political culture
with a robust commitment to equality and redistributive values.

In the striking upswing of the postwar economy, labor demands re¬
sulted in a concerted effort to recruit foreign labor, the presence of which
continues to be vital economically. The incorporation of the former
German Democratic Republic (GDR) into the Federal Republic has
placed a temporary strain on the economy; in the long run, however, it is
clear that the economy wUl require a greater set of participants than
can be accounted for by German nationals under present demographic
trends (see, e.g., Geissler 1990; Cohn-Bendit 1993). This trend can
only lead to further employment of non-Germans, a prospect that has
alarmed many already worried about the present undermining of Ger¬
man cultural homogeneity. At this late date, of course, the cumulative
effects of industrialization, urbanization, and developments in micro¬
communications have already exposed German society to much broader
forces of assimilation. In fundamental ways, contemporary Germany has
come to share with its North Atlantic neighbors all the characteristics of
a classic welfare state, from the high centralization of power and the
pervasive administrative presence of the government, to the compulsory
education system and omnipresent mass media, to the great variety of
protections, duties, and privileges assigned to individuals vis-a-vis the
government.

To summarize, the process of German state- building has, as witla
other European states, been marked by the consohdation of an orga¬
nized state society characterized by highly concentrated and centraUzed
government power (Vcrstciatlichung) but also a considerable degree of
representation and protection of members iyerrechtlichung) . It has been
distinctively “German” in its degree of centralization, in its military and

20 Ethics of Citizenship

geopolitical particulars, in its relationship to nationalism, and in its pos¬
ture toward foreigners. Members of the German state society are those
who, to apply Rokkan’s model once more, ( i ) are objects of state pen¬
etration, that is, pay taxes, are held accountable to the law, and make the
economy function; (2) are objects of homogenization, in that they un¬
dergo compulsory education and are exposed to the mass media; ( 3 ) are
participants in the political life of the society, formally through their
exercise of rights such as suffrage or less formally through interest group
politics or mass mobilization; and (4) are included in the apparatus for
redistribution, in that they are recognized as having equal claims of
entidement to collective resources in the form of welfare, unemploy¬
ment, housing, and so on. These categories each admit of degrees, but in
general they encompass those persons who live in and participate in
German society. Thus, until reunification those German citizens who
lived in the German Democratic Republic were excluded from the state
society; while in the Federal Republic, permanent or long-term residents
have enjoyed membership all along regardless of their citizenship.

C\vitns-Builiiin0

The everyday reality of participation in and subjection to a concrete
territorial society described by the notion of state membership stands in
stark contrast to the dominant tradition in German citizenship pohcy,
which juxtaposes to the state society a separate German membership
determined partly through structural factors and partly through subjec¬
tive identification. Where German national membership describes an
ethnocultural group and state membership describes a class of persons
fulfilling certain roles in society, citizenship, in theory at least, operates
on the model of a club,^^ an organization predicated on common com¬
mitment to a purpose and on the principled exclusion of outsiders. The
purpose of the German citizenry may be concisely identified as the self-
determination of the German Volk or, formulated differently, the realiza¬
tion of a true German nation-state (cf. Fijalkowski 1991a, 2-3). In prac¬
tice this realization has translated into a policy aimed at, crudely put,
making all state members German and bringing all Germans into the
state. There are two ways of achieving such an end: making the state fit
the Germans, or making the Germans fit the state. The first course has
been attempted and, following a series of well-known imperialistic mis-

The Making of Boundaries 2 1

adventures, failed; the second, pursued with more subde means, remains
the current strategy. The makers of citizenship policy have tried to attain
their goal by, in effect, legislating it into existence. But because a state for
and only for the historic German people has remained elusive for a
number of geopolitical reasons, today’s German citizenship laws remain
attached to a “legal fiction” (Hailbronner 1989a) that collides with the
reality of state membership and results in a politics of discrimination
against non-Germans.

The laws that have given contour to German citizenship have aimed at
the embodiment of a certain ideal citizen. This citizen is an active mem¬
ber of the state society, a bearer of German culture and language, and an
engaged participant in the political life of a community viewed as worthy
of his or her ultimate loyalty and sacrifice. Deliberately excluded from
this category, as a rule, are ethnic Germans residing outside German
territory and “non-German” members of the state society such as mi¬
grant workers; both groups possess other, competing citizenships.^* As
with other groups, the citizenry has developed through a process of
identification and differentiation. Citizenship has been systematized
in German lands over the last two hundred years through a largely
problem-driven arc of development. In the course of this process, mem¬
bership has come to be based principally on one’s bloodline, although in
exceptional cases other factors, such as assimilation to the national lan¬
guage and culture and commitment to the German Bxchtsstaat, have also
come to play a role. In Germany as in other countries, modern social
movements have succeeded in securing the progressive extension of cit¬
izenship to various disadvantaged social groups: peasants, women, and
children, for example. Of more especial significance to the German con¬
text, a crucial dynamic determining the boundary making of the citizenry
has involved the ongoing development of formal distinctions between
Inlander (native Germans) sndAusldnder (aliens, resident foreigners).
This distinction, which has important cultural and legal significance, has
formed the heart of a distinctively German tradition of dealing with
foreigners. The outcome of this tradition is the existence of two separate
bodies of law dealing respectively with German citizens and with foreign
citizens in Germany. The establishment of German citizenship has,
through the Inldnder-Ausldnder distinction, severed a particular set of
“civil rights” — including some fundamental political and civil rights^^ —

22 Ethics of Citizenship

from the general set of human rights guaranteed to all in Germany.
Moreover, one could argue, the fact that foreigners in principle possess
no protection against deportation serx^es in practice to limit the extent to
which they may safely exercise those rights assigned tliem.

In sketching the histon,' of the institution of German citizenship, we
may once again distinguish between a nascent period prior to the found¬
ing of the Reich, and a subsequent period of consolidation. Political
memberships in German territories were for the most part informal and
organized around cities, manors, or provinces until the sev'enteenth and
eighteenth centuries. During this time, agreements among local commu¬
nities were made with the goal of regulating treatment of beggars and
the poor by assigning them home areas, determined by birth, from
which they could not be expelled. As the growing mobility accompany¬
ing increased trade raised the number of foreigners present in German
cities, a rudimentary' system for licensing and regulating their movement
arose (Dohse 1985, 12-14). Mass poverty' and consequent internal mi¬
gration led to state efforts to distribute the problem regionally. The
initial attempt of the state to define “who its poor were” (Grawert 1973,
134) provided a criterion of belonging and marked the beginning of the
practice of distinguishing legally beuveen Inlander and Ausldnder At this
point, the overarching legal status of citizen existed alongside the often
more relex'ant categories of native, resident, burgher, and subject; yet, as
intermediate political structures continued to be undermined in the
state-building process, citizenship came to take on more and more
significance.

In 1813 a passport sy'stem of sorts was introduced in Prussia along
with a special police force (Fremdenpolizei) for dealing with foreigners.
In the next decades citizenship remained assigned by and radically con¬
tingent upon the will of the representatives of the x arious state organiza¬
tions. A certain guarantee for the passing on of membership through
descent (jus sanguinis) was incorporated into law in Bavaria (1818) and
Prussia ( 1842) . Meanwhile, place of birth and mere residence ceased to
suffice as criteria for membership, and mobility' for foreigners became
limited as a result. Following the revolution of 1848, a short-lived law
temporarily established an imperial German citizenship based on reci¬
procity' among states regarding their respective members. Around 1850,
combined efforts at dealing with people who had become stateless in the

The Making of Boundaries 23

period of unrest produced a further step: the explicit adoption in most
German states of citizenship laws based primarily on the Prussian model
(Grawert 1973, 199). On the eve of the creation of a German empire,
however, citizenship remained at the level of these small states. At this
point, German citizens were distinguished from AuslUnder mainly in
that they had a right to free movement within their particular state
coupled with a right not to be expelled.

With the formation of the North German Federation in 1867 and the
grounding of the Kaiserreich in 1871, this distinction was permanently
raised to a federal level, with a corresponding transfer of the power to
distribute membership from the state to the national level. Yet instead of
creating a unified German citizenship, the federal model aimed at stan¬
dardizing the individual membership practices across the German states.
Under the new system, German civitas members — at this time, citizens
and subjects (including women and children) —were technically no
longer Auslander everywhere outside their home state: they became en¬
titled to treatment as Inlander throughout the Reich. The only ethnic
German residents who could still to a limited extent be treated as Aus-
Idnder were those poor whom states were authorized to deport back to
their home states (Dohse 1985, 18). As a result, the standardization of
Inlander status linked the conception of Ausldnder virtually exclusively
with non-ethnic Germans.

The legislation accompanying the grounding of the Reich established a
Rechtsstaat based on the Prussian model, which not only implemented a
broad German citizenship but also provided for a set of individual rights
and protections held for the most part equally by Inlander and Aus¬
ldnder. Indeed, in the new state, both pubhely and privately any disad¬
vantaging of foreigners required a special legal ground as a general rule
(Dohse 1985, 22). Finally, though, a bit of the police state remained in
effect for foreigners who, in contrast to Inlander, remained ever vulner¬
able to expulsion at the discretion of the government — a situation that
still exists today. This vulnerability in turn placed the exercise of some
rights within certain prudential limits. As the jurist Ernst Isay com¬
mented in 1923, “The sphere of freedom iov Ausldnder is reduced infaa,
if not under law by the state right of deportation” (quoted in Dohse
1985, 24; emphasis in original) .

For Inldnder, the new state solidified not only the right to remain in

24 Ethics of Citizenship

the Reich but also rights to a place of residence, to practice a business, to
ser\^e in public office, to inherit land, and to enjoy those civdl rights
reserx ed for citizens in the various states. Since male suffrage had already
been established in Prussia in 1 849, citizens enjoyed some access to polit¬
ical participation, although the state formally remained under authori¬
tarian rule and was on the whole immune to democratic influence.

During the period of intense state-building prior to World War I, the
process of building distinctions between German members and others
focused on foreign workers, whose admittance to and movement within
Germany were increasingly controlled. At the same time, unambiguous
efforts were made to accelerate the cultural assimilation of the German
population. A militaristic attitude was an important component of the
identic that developed at this time, and this attitude was reflected in the
importance placed on the establishment of military' serx'ice as a duty of
citizenship. In addition, acceptance into the German civil service was
effectively conditioned on subscription to official German values in a
manner excluding not only' Jews but also virtually any'one who was not a
reserx’e military' officer (Gilbert 1984, 86-87).

In 1913 a citizenship law (Reichs- und Stcuitsan0ehdri^keits£iesetz) was
adopted w hich remains in effect today'. The thrust of this law was to
establish the principle of jus sanguinis as the basis for the attribution of
German citizenship and to limit any further inclusion.^' Any notion of a
right to naturalization w'as dispensed with; naturalization was identified
as an exception made contingent on full cultural assimilation, expressed
commitment to German constitutional values, repudiation of previous
citizenship, and the presence of a pressing state interest in accepting the
applicant. Through this legislation, the political community' w'as limited
to a culture- and blood-related group for which considerations such as
long-term residence or place of birth w ere irrelevant.

The strict limiting of citizenship to German ethnic members led to a
deepening of the distinction betw'een Inlander and Ausldnder. As the
bureaucratization of government progressed, separate administrations
formed for each group. With the greatlv increased mobility' foUow'ing
World War I, immigration controls became w'idespread in Europe, and a
complex sy'stem of residence permits with x arx’ing degrees of imperma¬
nence was devised for foreigners in Germany'. In the Weimar Republic,
labor policies restricted job prospects for foreigners by establishing a

The Making of Boundaries 25

principle of priority for German workers. Even today, the system for
policing foreigners still relies to a great extent on the structure developed
under the National Socialists, although the special regulations for non-
citizens^^ and revisions of laws for citizens enacted in the 1930s (such as
the 1935 “Law to Protect German Blood and German Honor”) are of
course no longer valid, with the notable exception of a provision that
transferred individual state memberships into a single national citizen¬
ship (Makarov 1971).

The turbulent postwar decades wimessed the creation and dissolution
of a competing German citizenship in the German Democratic Re¬
public. Yet citizenship in the Federal Republic has adapted to the new,
postreunification scale of the state with a minimum of formal changes. In
fact, no new citizenship law has been drafted. Policy has continued on
the assumption that the Reich, for all intents and purposes, still exists,
which means that the system for controlling foreigners without provid¬
ing means for immigration or substantial naturalization has remained
intact. Only two major revisions in citizenship policy have been made in
response to changing conditions, both by way of the Basic Law.

The first of these revisions deals with the so-called Aussiedkr, ethnic
Germans from former German territories who elect to migrate to the
Federal Republic. Aussiedkr enjoy a constitutional right to take on Ger¬
man citizenship upon their arrival (German Basic Law, article 116).
Since no separate citizenship for the Democratic Republic was ever ac¬
knowledged, refugees from East Germany were regarded as having al¬
ways been German citizens. Ethnic Germans from elsewhere were guar¬
anteed membership under the Federal Expellee Law of 1953. This policy
was originally designed to accommodate the flood of over ten million
German expellees and refugees from other countries that descended
upon the Federal Repubhc in the years immediately after World War 11.
However, the policy has also been interpreted to apply to a continuous
stream (for the most part, from Poland, Russia, and Rumania) of mi¬
grants with claims to ethnic German membership.^^ In many cases, these
immigrants have little or no knowledge of German language and cul¬
ture; nonetheless, by virtue of being related to a past member of the
Reich they are entitled to receive citizenship status upon appUcation.

The second revision has to do with the status of women. Under the
law of 1913, German women automatically lost their citizenship when

26 Ethics of Citizenship

they married foreigners, while foreign women automatically became
German citizens through marriage to a German man. In addition, a
gender-based proviso of the German jus sanguinis principle held that
children born to German women married to foreigners did not receive
German citizenship. Following the founding of the Federal Republic,
the loss-of-citizenship rule was rejected as incompatible with the ban on
discrimination included in the Basic Law. Foreign spouses were required
to apply for naturalization with no guarantee of success, although a
general presumption was established in their favor. Only after a Federal
Constitutional Court decision in 1974 was the provision for children
born to German women in mixed national marriages declared uncon¬
stitutional and the policy revised (Huber 1987, 209-15).

The German Basic Law adopts as its main premise the idea that “the
power of the state emanates from the people” (art. 20, sec. 2). The
“people” {Volk), according to present legal standards, is the German
people, understood as the collectivity of German citizens and German
ethnic immigrants bearing a claim to citizenship. To summarize the pro¬
cess through which this group has been created, German citizenship has
represented an attempt to transfer an emerging ethnonational identity to
the concrete context of a dev'eloping state structure by limiting full mem¬
bership in the state to a culturally homogeneous, consanguineous group
and by creating differences of status betw'een ethnic Germans and others
present in the state. These others, deemed “Ausldnder” have been as¬
signed a subordinate membership status. The distinction has been man¬
ifested legally in the creation of separate bodies of law for the two groups
and the reser\^ation of suffrage and other rights and duties for citizens,
including the basic right not to be expelled. The citizenry^ that has
emerged from this overall process views itself, in keeping with the ideol¬
ogy of the nation-state that its membership policy is designed to ser\'e, as
both the sole legitimate source of so\'ereignty in the Federal Republic
and the designated bearer of German culture.

The three groups I have outlined might be said to constitute, in classic
Hegelian fashion, a dialectic of German membership. The German
Kultumation in this formulation represents the original thesis that has
been confronted historically by the antithesis of the emerging German
Rechtsstaat. The synthesis that Germans have attempted to draw out of
this conflict is the incarnation of the Nationalstaat in the form of citizen-

The Making of Boundaries 27

ship. But like Hegel’s “Absolute Idea,” this synthesis seems an inexplica¬
bly static notion. More importantly, it has always been and is likely to
remain in essence a Sollen, a telos, a utopia. As is die case in other ethnic
nation-states, the institution of citizenship in Germany seeks to bind the
responsibility for steering a concrete community into the future with an
artificially constructed national past.

In the here and now, this synthesis is unstable in practice, challenged
by evolving historical conditions. In the wake of reunification, German
citizenship finds itself in an identity crisis exacerbated by economic in¬
equalities and deep differences in social outlook among Germans. At the
same time, the established presence of a disenfranchised foreign minority
has increasingly highlighted the discriminatory character of prevailing
citizenship practices and called into question the progress made toward
democracy in postwar Germany. These changes in the structure of the
nation, and especially of the state, have come to demand a more realistic
synthesis for German membership, one that speaks to the present.

The Birth of the Migrant Worker Minority in Germany

In reunited Germany live over seven million foreign citizens (8.8 percent
of the total population), roughly seven-tenths of whom are migrant
workers or their family members. The migrant worker populations^
has become, clearly and contrary to aU intention, a fixed part of the
German social landscape, and it is this development which is chiefly
responsible for spawning the ongoing public discussion in Germany
over citizenship, political representation, and the “multicultural society.”
An analysis of these membership debates must draw on an account of
how this group became established in German society. The dynamic
involved is the formation of a minority, a constant and distinct group
marked off from the mainstream through a constellation of legal, politi¬
cal, ethnocultural, and socioeconomic differences.^^ German historians
and social scientists have produced a wealth of detailed descriptions of
the worker migration and its consequences.^^ Rather than portraying
this history in aU its complexity, my intent is to highlight those aspects of
the process that have shaped judgments and positions regarding its after¬
math. The foUowing sketch of the birth of the migrant worker minority

28 Ethics of Citizenship

is, accordingly, a narrative that emphasizes morally relevant themes, such
as responsibilitN' for the migration or the basis of migrants’ claims to stay,
at the expense of other themes, such as the mechanics of recruitment or
the international economic context.

Mipfration

The new minorities in Germany were formed through a policy of foreign
worker recruitment that led gradually to an informal immigration pro¬
cess. This development had its roots in a sharply rising demand for labor
that accompanied the rebuilding of the German economy following
World War II. Traditionally, fluctuations in labor needs had been man¬
aged through the manipulation of foreign labor groups.^® In the after-
math of the war, however, these labor needs were at first filled by a wave
of — returning German refugees and expellees — and then

by a wave of refugees from East Germany. At the same time, the gov¬
ernment and employers remained aware that a labor shortage loomed,
and in 1955 a trial labor-recruitment agreement with Italy was initi¬
ated. With the building of the Berlin Wall in 1961, the attainment of
full emplovment, and the coinciding rebuilding of the German armed
forces, the shortage of workers became acute and policymakers turned in
earnest to the recruitment of foreign workers. Throughout the sixties,
Germany pursued and signed labor-recruitment agreements with Spain,
Greece, Turkey', Morocco, Portugal, Tunisia, and Yugoslavia.

In keeping with the essentially economic character of the recruitment
policy, each of the parties involved was concerned primarily with the
pursuit of short-term interests, and the expectation on all sides was that
the employ'ment would be temporary'. German recruiters saw the ar¬
rangement as an opportunity to build up the German economy through
labor obtained with a minimum of financial investment and social costs.
Policymakers in the countries providing the workers viewed recruitment
as a chance to siphon off unemployed workers, bring in foreign currency,
and gain trained workers who on their return would help develop their
home country. And the workers themselves were confronted with the
allure of good jobs that would allow them to provide for their families
and improve their economic status following their return. Neither the
Germans nor the other participants gave much thought to the somewhat
foreseeable long-term social and economic ramifications of recruitment.

The Making of Boundaries 29

In the next years, millions of foreign workers — mosdy men between
the ages of twenty-five and forty — filled a variety of low-level jobs pri¬
marily in the industrial sector. Collectively, they played an essential role
in the continued German ascent to prosperity and a high standard of
living. Under the terms of their employment, they were officially granted
the same status as German workers; however through a policy of “rota¬
tion” imposed through short-term contracts, they retained their role as a
buffer in times of economic difficulty. During the recession of 1966-67
many were compelled to return to their home countries, and when un¬
employment threatened again following the oil crisis in 1973, the recruit¬
ment of foreigners was abruptly terminated.

Settlement

Following the ban on recruitment, many thought the foreign presence
in Germany would eventually fade away, and after 1973 most national
groups did see slight declines. Still, the majority of workers remained,
and due to the activity primarily of one group, the Turks, in bringing
family members to Germany, the overall number of foreigners continued
to climb throughout the seventies. The migrants’ continued presence was
once more attributable to all of the parties of the original agreements.
Before the recruitment ban, the German government’s attempts to main¬
tain a strict two-year rotation policy for workers had predictably met
with resistance from employers, who protected their investments of capi¬
tal and training by renewing the contracts of most workers regularly. At
the same time, the governments of recruitment countries failed in most
cases to provide adequate reintegration measures for returning workers,
even as the amplified impact of downward economic trends after 1 973 on
developing countries greatly reduced the incentive of migrants to return.
For their part, the migrants became accustomed to the consumer lifestyle
and increased earning potential in Germany, and began gradually to raise
families, to send their children to school, to invest in housing, to establish
savings in Germany — in short, to put down roots. Over time, as ties to
the new country began to solidify and those to the homeland to weaken, a
phenomenological process of settlement took place. Communities of
foreigners developed “hyphenated” identities (Rist 1978, 245), setting
them apart from their conationals as well as the Germans.

Corresponding to this development, there evolved on the part of most

30 Ethics of Citizenship

Germans a gradual recognition of the migrants’ moral claim to a right to
remain. That these workers had made their homes in Germany, raised
families, invested labor and capital in die economy, and established en¬
tire communities, came to be understood as grounding a normative
claim to membership, to belonging — to being able to stay if they de¬
sired, and to participate. This claim was reflected in the recognition of a
constitutional right for foreigners to extend their residence and to bring
their families, based on provisions guaranteeing the free development of
the individual personality and the state’s commitment to protecting mar¬
riage and family ( German Basic Law, arts. 2 and 6 ) . There grew as well a
broad consciousness of the subordinate socioeconomic role played by
foreigners and a sense of unfairness at the thought of forcibly expelling
them once their usefulness was past. A mass expulsion consequendy
became both politically and legally impracticable, and by the end of the
1 970s the governing social-liberal coalition officially recognized the ne¬
cessity of a long-term integration of the increasingly setded foreign
worker population.

Consolidation

In the early eighties, against the backdrop of a stagnating economy
and growing sentiment against foreign workers, the newly elected
conservative-liberal coalition gov'ernment enacted a policy designed to
encourage the return of the migrants to their countries of origin, pardy
through cash incentives. This program, however, was largely unsuccess¬
ful. It is true that to this day a majority of first- and second-generation
migrants e\'ince the intention, however \'ague, of at some point return¬
ing to their homeland for good (Friedrich-Ebert-Stiftung 1986). In
practice, however, it has become clear that migrants generally remain
permanendy in Germany and, additionalh', often retrieve family mem¬
bers who were left behind (Poschl and Schmuck 1984). Further evi¬
dence that the Turkish community in particular has oriented itself to
a long-term stay in Germany is provided by a shift in political focus
away from issues in Turkey toward possibilities for collectiv'e action
among Turkish migrants in the Federal Republic, as w^eU as by increas¬
ing economic engagement in the new homeland (Ozcan 1989; Hoch
1994).

The Making of Boundaries 3 1

The reunification of Germany complicated this picture by introducing
a group of about 1 00,000 foreign workers from the former GDR. These
workers, who had come to the GDR under agreements with Vietnam,
Angola, Mozambique, Cuba, and Poland, served tlie purpose of meeting
labor shortages in the East German economy. Ostensibly symbols of
international socialist solidarity, in practice they were sequestered in
isolated tenements, their stay made tenuous by a legal status purely
contingent upon the interests of the state, under which, for example,
pregnancy could constitute grounds for expulsion (Kriiger-Potratz
1991; Cu 1992). With the collapse of the communist regime, many of
these workers were quietly repatriated, while others sought political
asylum in the Federal Republic. Following reunification, arrangements
were made to secure the residence status of a portion of these workers,
mainly Vietnamese, who now make up a distinct minority in Germany;
many others, however, were marked for deportation.

Three decades of German experience with the guestworkers allow for
a cautious assessment of the societal consequences of their presence. Critics
have claimed that foreigners take away jobs from Germans, that they
threaten the integrity of the German culture, that they are uninvited
guests, that they sap the German social security system, that they encour¬
age criminality and undermine order. The migrant workers and their
allies meet these claims with various reminders: of the contributions
made by the employment of foreigners to Germany’s economic well¬
being, often at the expense of their countries of origin; of the need to
respond to past injustices against foreign workers, most notably under
National Socialism; of the fact that the presence of foreigners has actu¬
ally created jobs for Germans and helped finance the German welfare
system; of Germany’s age-old status as a multicultural society; of the
potential for mutual enrichment through cultural exchange; and — not
least of all — of the long-term demographic prospects for a reunited Ger¬
many, which indicate a vital employment role for foreign worker fam¬
ilies, the only growing sector of the German population. On balance,
claims that the foreign presence until now has been harmful appear to be
more emotionally than empirically based, while concerns about the diffi¬
culties of minority politics and the perils of pluralism tend to exhibit a
firmer grounding in experience.

32 Ethics of Citizenship

The Current Problem: Three Types of Subordination

The outcome of the recruitment and employment of foreigners in Ger¬
many — as in several other European countries — is a settled population
of first-, second-, and third-generation migrants whose presence in the
society is problematic in a variety of ways.^° The troubled status of this
group may be described with reference to the same broad categories used
above in charaaerizing German membership. The central feature defin¬
ing the Ausldnder population is its subordination or exclusion, which
arises in the intertwined processes of nation -building, state-building, and
cmfflj-building, in the interrelated forms of discrimination, socioeco¬
nomic inequality, and legal disadvantage.^^ Characteristic problems fall¬
ing under these three headings reflect the established status of the mi¬
grant worker population as a minority in the American sense, exhibiting
all the social isolation and collective alienation that this term suggests.

Nation-Building and Ethnic Discrimination

As described above, the process of nation-building is one of marking off
a distinct ethnocultural group from other comparable groups. The de¬
velopment of the German ethnonation has involved the valuing of cer¬
tain central “German” characteristics and norms, and the heightening of
differences between Germans and members of other national groups
into oppositions and even into bases of enmity. It is difficult to identify
precisely the sort of agency at work in this process, although as noted,
intellectual and political ehtes play a disproportionate role. What is clear
is that in the German case, as in others, nation-building has established
boundaries for discrimination — for the preference of those sharing a
common identity and for the exclusion or rejection of aU others. The
Holocaust saw the extreme side of this rejection, but the favoring of
one’s own group and the accompanying subordination of others takes
place at the most mundane levels of human interaction.^^ In today’s
Germany, those members of society not sharing accepted “German”
qualities experience considerable problems because of their otherness.
Among the migrant worker groups, this applies especially to the Turks,
who are perceived as a particular threat to Germans on account of both
their numbers and the extent of their cultural distinctiveness.

Discrimination against foreigners in Germany takes place individually

The Making of Boundaries 3 3

and collectively, in a variety of contexts, and with varying degrees of
subdety. Everyday instances of discrimination — isolation in a crowded
subway or the refusal of admission to a disco — shade into more openly
hostile forms of rejection. In the housing market, advertisements often
specify that no foreigners need apply. In the workplace, foreigners are
disproportionately assigned to poor working conditions and passed over
for promotions (Schafer 1985). Many foreigners complain about the
harsh treatment they receive at the hands of the various administrators
they are forced to deal with in the pursuit of work and residence permits,
and statistics show that foreigners are more likely to be charged with
crimes than Germans are (Pitsela 1986). A number of studies have
focused on the images of foreigners presented in the German media,
which, particularly in the case of Turks, tend to be mostly negative (Mer¬
ten 1986; Galanis 1989).

The most striking aspect of discrimination against foreigners is
the phenomenon commonly referred to zs Auslandeffeindlichkeit—\ht
wholesale rejection of non-Germans on ethnic or more often racist
grounds (Struck 1982; Hellfeld 1986; Stoss 1989; Hoffmann and Even
1984) . This sentiment, which tends to wax in times of economic down¬
turn, manifests itself in a spectrum of actions ranging from antiforeigner
graffiti to physical attacks on foreigners. An example of this trend is the
manner in which the Turks have inherited that crude genre of jokes
previously reserved for Poles and Jews. Scholarly analyses of the alleged
threat posed by foreigners to the integrity of the German people (see,
e.g., the Heidelberg Manifesto of June 17, 1981 ) were echoed in the late
1980s by a swell of political support for the Republikaner, a party advo¬
cating closed borders and the reduction of the foreign population. Ger¬
man reunification has revealed a particularly high level of hostility to
foreigners among East Germans, an attitude not at all eased by the
accompanying high rate of unemployment. But antipathy toward non-
Germans is widely present in western Germany as well, and the sites
of major outbursts of antiforeigner violence — Hoyerswerda, Rostock,
Molln, and Solingen — as well as the thousands of smaller incidents that
take place yearly are distributed throughout the country. On the whole,
discrimination is, due to its ethnic basis and face-to-face nature, a prob¬
lem of particular moment for those mostly non-European foreigners
bearing a conspicuously non-German appearance.

34 Ethics of Citizenship
State-Buildin0 and Socioeconomic Inequality

A second t\'pe of subordination of foreigners corresponds to the struc¬
tural realm described above as the state society and is characterized by
the socioeconomic exploitation of foreigners. The inequality experi¬
enced by foreigners, while related to the active discrimination practiced
against them, is essentially a systemic phenomenon, an outgrowth of
the mechanisms of the state-building process. In this process, foreign
labor has provided a class that is not excluded from the German state,
but rather subordinated within it. With reference to the categories of
state-building used above, foreign residents as a group are ( i ) more
subject to centralized state power than other members of German so-
ciew, (2) less integrated in terms of language, education, and public
life, (3) less involved politically, and (4) less likely to benefit from eco¬
nomic redistribution. The migrants’ occupation of the lowest rung in
the German socioeconomic hierarchy has not been the least of their
contributions to the postwar stability and prosperity of the Federal
Republic.

Of course, to a certain extent the worker communities in Germany
have benefited from the general push for social equality in welfare states.
Even so, the forms of structural inequality with which foreigners must
contend remain manifold. In the area of employment, the situation of
foreign workers is characterized by disproportionately hazardous condi¬
tions coupled with low wages. Foreigners, the traditional “industrial
reserv'e army” (Fijalkowski 1984) for the German labor market, also
experience unemployment rates that are more than double the national
average, and in the past many have found their only prospects for work
in illegal employment under particularly bad conditions. Although the
gap is gradually closing, those with jobs have considerably lower chances
of advancement than their German coworkers ( Friedrich-Ebert-Stiftung
1986). In general, the average income of a migrant family falls notably
below that of a native German family.

These trends in employment have a great deal to do with inequality' in
the school system, and both are aggravated by language deficits on the
part of the migrants. The number of foreigners who enter the German
schools at a late age skew the statistics to a certain extent; nonetheless, it
is clear that foreigners are considerably behind other Germans in terms
of high school graduation rates. Moreover, they are gready underrepre-

The Making of Boundaries 3 5

sented in higher education as well as in vocational training programs,
where their entrance rates are a third those of Germans (Berlin Commis¬
sioner for Foreigners’ Affairs 1989; Die Zeit, June ii, 1993, 12).

Housing is another realm in which foreigners fare considerably worse
than the German population at large. The dwellings occupied by mi¬
grant worker families tend to be inexpensive and poorly maintained, and
often occupy areas that are practically devoid of ethnic Germans. It is
important to note that the “ghettoization” of the migrants is pardy a
matter of choice reflecting the desire both to save money and to live in a
particular cultural subcommunity. At the same time, few opportunities
exist for a standard of housing equal to that of most Germans. Indeed, it
seems clear that in the area of basic social and economic living condi¬
tions, foreigners have taken on the role of an underprivileged class.

Civitas-Building and Legial Disadvantage

The differentiation process associated with the institution of citizenship
has produced a third fundamental type of subordination for the migrant
worker minority, namely the systematic disadvantaging of its members
through laws and regulations. The historic collective political-legal at¬
tempt to make full membership in the German political community
contingent on the possession of German ethnic characteristics has re¬
sulted in a denial of many of the commodities of membership for the
non-German portion of the society. In the course of cot to- budding, the
status of “foreign national” has established itself as the basis for the insti¬
tutionalization of subordinate rights and separate treatment. Just as the
category of citizenship mediates between efforts to define ethnonation
and state society, the legal disadvantaging of long-term foreign residents
provides an arena for translating active ethnic attitudes into the basis for
systemic inequality.

This process is reflected above ail in the general legal strictures that
apply to foreigners, including many second- and third-generation mi¬
grants born and raised in Germany. In many areas of life, foreigners with
legal residence in Germany possess, it is important to note, the same
rights as Germans. In their legal personae as workers, for example, they
enjoy virtual equality with German citizens. Nonetheless, as foreign cit¬
izens the overwhelming majority of migrant workers and their families
find many of their horizons shaped by the restrictions applying to them

36 Ethics of Citizenship

under the German Aliens Act ( 1991 ). This means above all that they do
not have a legal right to stay in Germany, but rather require a residence
permit, and that they may be expelled for a number of reasons including
criminal activity, drug addiction, and endangering the interests of “state
security'.”^^ It also means that they require work permits in order to hold
jobs, and that they are ineligible for many careers — as civil servants, for
example, or as chimney sweeps. Certain legal limits apply to the political
activity^ of foreigners (see Hailbronner 1989a, 183-203; de Groot 1989) :
they are not allowed to vote, run for office, or form political parties, and
additional restrictions apply to their rights of speech, association, and
assembly ( Berlin Institute 1987) . The lack of venues for political expres¬
sion is not total for this minority — they have advisory bodies in some
local governments and also exert indirect influence on political parties —
but it is sufficient to ensure that they can do little to prosecute their own
interests.

Foreigners face additional legal disadvantages in the job market
(where Germans have priority for open positions), in the commercial
spheres, and with regard to privacy regarding personal data (Berlin
Commissioner for Foreigners’ Affairs 1994, 24). Communities with a
certain percentage of foreign residents can legally ban additional for¬
eigners from moving into them. In the sphere of religion, the over¬
whelming majority of Turks find their faith denied the legal status and
pri\ileges accorded the mo major Christian churches (Berlin Institute
1989) . In these w'ays, having the status of foreigner conditions the entire
sphere of possibilities for shaping one’s life. This disadvantage is partly
ameliorated for those foreigners who benefit from membership in the
European Union. For others, apart from emigration, the only way to
transcend this pervasive handicap is through acceptance into German
citizenship. Yet, although most foreign workers are now eligible for
naturalization, the costs and requirements involved — especially the dis¬
avowal of all previous citizenships — discourage the overwhelming ma¬
jority of migrants and their families from taking this step.^^

Although the relationship among them is complex, in general the
various sorts of subordination of migrants tend to reinforce one another.
This interdependence is illustrated in the case of housing, where discrim¬
inatory letting practices, structural inequality in the form of “ghettoiza-
tion,” and legal bans on moving to some areas combine to limit seriously

The Making of Boundaries 3 7

the living conditions of foreigners. A fundamental change in the subor¬
dination of the foreign minority would ultimately require changes in all
three areas. Altering patterns of ethnic discrimination and socioeco¬
nomic inequalities is inherendy difficult, however, because of the com¬
plex and indirect forms of collective agency they involve. Consequendy,
the area of legal disadvantage and dwtoj’- building — that is, the sphere of
the international political structuring of societal membership — suggests
itself as the area where change might most fruitfully be sought.

In any case, it remains difficult to avoid the recognition that foreign
workers and their families have become de facto immigrants and must be
dealt with as such. Since the early 1980s, efforts to integrate these minor¬
ities into the German mainstream have been increased. These efforts
have been marked by virulent discussions regarding various facets of the
question of membership for this group. Should integration or assimila¬
tion be the goal for incorporating them.> What sort of society should be
aimed at — a homogeneous one or one respecting and perhaps even en¬
couraging cultural diversity.^ Should political inclusion be conditioned
on citizenship and if so, under what terms should naturalization be
available Should a single status of full membership in German society be
pursued, or should a hierarchy of variegated categories be imposed in
recognition of the desire for and attainment of partial membership

Chapter Two
Membership Debates

H

" ow is membership in a given political entity deter¬
mined? Who does the including and excluding? A basic
ethical question regarding membership status is the
question of agency'. In the case of the migrant worker
> families in German society, this question becomes.

WTio is responsible for the ethnic isolation, for the economic inequality,
for the political and legal disadvantage experienced by this group?

As we have seen, the boundary'-making processes that shape the rela¬
tions between the foreign worker population and their German “hosts”
combine different forms of activitv focused on, among other means,
political rules, economic structures, and ethnic identification. Since
these forms are so intimately bound up with one another, it is difficult
in most cases to specif)' the role played by each. Take, for example,
the question of how to account for the lo\\' number of namralizations
among eligible Turkish workers. Some claim that the individual workers
themselves are solely responsible for this result, that each simply chooses
freely not to take on German citizenship. Others claim that the low rate
of applications for citizenship is attributable to the manner in which
German officials ( legislators, the government, civil serv ants, the courts )
have shaped this choice — for example, in making naturalization con¬
tingent on the renunciation of all other citizenships. StiU others may find
decisive deterrents to efforts at attaining full German membership in the
collective phenomenon of active discrimination against non-Germans,
or in the “illusion of return” acti\'ely nurtured by representatives of both
the Turkish and German governments. These explanations are by no
means mutually exclusive; indeed they tend to reinforce one another and

Membership Debates 39

are further buttressed by the structures of the German economy and the
relations between industrial and developing nations^ We might say gen¬
erally that in questions such as that of naturalization, a complex dialectic
of agency is at work involving individuals, collectivities, and the struc¬
tures they create. But this is not a very satisfying response, nor does it
provide us with a promising starting point for probing and criticizing
the exclusion of foreign residents in Germany.

In order to make the problem more manageable it is necessary to set
some limits to our considerations. This can be done, first, by focusing
our examination of membership processes on the realm of political de¬
bate and lawmaking — that is, on building. This strategy allows us

to narrow our field of inquiry to that sphere of membership definition in
which developments are most susceptible both to analysis and to con¬
certed change. Although the socioeconomic and cultural activities that
produce inequality and sharpen prejudice are not simply detached objec¬
tive processes — they are undeniably perpetrated by people — the precise
way in which this occurs, and consequently ways in which these pro¬
cesses could be altered, remain opaque to us.^ That which distinguishes
the activity of politics,^ in contrast, is its explicit apprehension of the
possibilities of social agency — in its characteristic focus on the problems
of shaping human interactions, and in the chance it presents of effecting
changes in the structures conditioning them. PoUtics in this sense is an
ethical practice par excellence, and its inherent activism endows it with a
unique, controlling status in questions of membership. It is through this
sphere that we find the best chance of attending not only to formal
disadvantage but also, if less directly, to the other aspects of subordina¬
tion. Political discourse and action alone cannot solve the problems of
discrimination and inequality, but they may represent the key to an
overall solution.

A second way of narrowing our exploration is to concern ourselves
specifically with the normative concepts employed in the process of
rmt^tj-building. The taking of a position on questions of political inclu¬
sion and exclusion is an action guided by norms about membership.
These norms may be more or less explicit, but we must recognize that
they are always there, unless we wish to assume that at least some atti¬
tudes toward membership literally do not make sense.^ Even when we
deem a given perspective to be incoherent, this judgment itself takes

40 Ethics of Citizenship

place with reference to the norms we understand to be invoked by the
perspective we criticize. In political discussions about membership,
competing norms find expression in the presentation of the disparate
views of participants. An individual view is always at once an interpreta¬
tion and an application to specific circumstances of the norm or norms
that inform it, and for this reason a few basic norms can support a great
variety of different positions. My proposal here is to examine various
debates about membership in Germany in an effort to delineate the basic
normative schemes at work in them and to explore their conflicts. By
identifying the central normative points of difference regarding German
membership in the political sphere, we can establish the basis for a
nuanced evaluation of the overall grounds for the subordination of the
foreign worker population.

This approach is empirical in the sense that my characterization of
normative views of political membership is based on an account of cur¬
rent debates instead of the other way around. Yet, as with any such
investigation, the way in which the phenomena are described and classi¬
fied is unavoidably conditioned by the terms in which the project is cast.
This process ought always to be made explicit. Consequently, it is neces-
san^ to note that normative perspectives on political membership in the
modern West are all deeply influenced by the idea of citizenship first
developed in the Greek city-states. The core of this notion lies in the idea
of a “bounded equality” preserv'ed within the context of a political com¬
munity.^ Modern notions of political membership characteristically in¬
volve both a certain definition of equality ( for example, of specific rights
and duties) and a set of criteria according to which eligibility for this
equality is limited (for instance, membership in an ethnocultural group,
or residence in a specific territotyO . From this observ ation it follows that
the norms underlying various positions on membership may fruitfully
be distinguished with respect to both their/om and their basis. These in
turn will always be shaped by beliefs about the purpose of the political
community in question, as well as the character this community should
have in terms of, for example, ethnic, religious, or linguistic diversity.^

What follows is a brief description of the participants in the political
and legal processes surrounding the treatment of migrant workers and
their families in Germany, and an account of two sets of debates, one set
centered primarily on the concepts involved in questions of inclusion

Membership Debates 41

and citizenship for the migrants and another concerning basic political
alternatives for dealing with the problems of membership raised by this
minority. Based on this treatment, a number of fundamentally different
understandings of political membership that have decisively shaped pol¬
icy discussions are identifiable, setting the stage for a more extensive
consideration of conflicting normative perspectives on citizenship.

The Players

The political and legal structuring of the status of the migrant minority is
the product of a collective process involving a variety of actors. The
sketch given here of the different roles in the boundary-making process
for German citizenship aims at providing a basis for assessing the politi¬
cal weight of different arguments bearing on the inclusion or exclusion
of Germany’s permanent foreign residents (cf. Bade 1990, 35-86; Sieve-
king etal. 1989).

The dominant role in determining national policies toward foreign
worker families has been played by the German government, since long
before a pohcy of recruitment was enacted. In keeping with the exclu¬
sively economic focus of the original “guestworker” policy, the Minister
of Labor has always been a central actor; in recent years, the Minister of
the Interior has also taken on large responsibilities toward the new mi¬
nority. Since the late 1970s, Germany’s official strategy for dealing with
this group has aimed at ( i ) preventing its growth by limiting further
migration wherever politically and legally possible, (2) reducing it by
encouraging the return of foreign nationals to their countries of origin,
and ( 3 ) absorbing it through various measures aimed at integration. Al¬
though the Uberal-socialist (1979-82) and liberal-conservative (1982-
97) coalitions gave different weight to its individual components, on the
whole there has been a great degree of continuity in this policy. How¬
ever, the basis of parliamentary approval for this pohcy has steadily
eroded over the last decade.

Germany’s federal system grants each individual state a large say in
setting and implementing its own policy toward ahens. This has pro¬
duced a great diversity of measures and made a unified pohcy impossible.
In general, states governed by the social democrats have adopted more

42 Ethics of Citizenship

liberal, integrationist policies, while states governed by the Christian
Union parties have preferred to emphasize limiting new migration and
encouraging remigration. At the federal level, these respective orienta¬
tions clash in the Bundesrat, the parliamentary body constituted by the
heads of the state governments.

The particular legal basis for the foreign presence has led the govern¬
ment to create a large and complicated system of controls regarding
residence and work permits, accompanied by a highly developed bu¬
reaucracy that possesses a considerable amount of discretion in decision
making that affects the membership status of foreigners. In addition, the
German administrative courts have gready influenced how officials who
deal with foreigners practice, although in which direction is not clear.
Some (e.g., Quaritsch 1981, 35-45) claim that the courts are largely
responsible for the unintended consolidation of the foreigners’ stay in
Germany, while others (e.g., Franz 1990a) accuse the courts of establish¬
ing exclusionary precedents concerning the migrants.

Not surprisingly, political parties in Germany have been leading par¬
ticipants in discussions concerning policy toward the foreign minority.
Their differences ha\'e contributed to the creation of a variety of policies,
particularly at the regional level. At the same time, the foreigner issue
itself has played a major role in shaping the party-political landscape
in Germany since the early 1970s. Thus 1988 saw the rise to political
viability of the far-right Republikaner party on the basis of their op¬
position to the foreign presence and commitment to reducing it. At the
other end of the political spectrum, the Greens have likewise made the
equal treatment of foreigners a cornerstone of their platform, which calls
for the recognition of a “settler” status for long-term foreign residents
that would include full political rights and dispense with residence and
work permits. The alhed parties of the right, Kohl’s Christian Demo¬
cratic Union (CDU) and the Bavarian Christian Social Union (csu),
have — with notable individual exceptions — backed the government in
maintaining a restrictive policy aimed at preserving German national
identity. In their view, this means limiting the size of the foreign popula¬
tion wherever possible and conditioning full membership rights for for¬
eigners on a completed process of integration. Their primary' opponents,
the Social Democrats (spd ), have pushed for limited political rights for
foreigners as well as for greater efforts at integration. The Free Demo-

Membership Debates 43

cratic Party (fdp), in keeping with its liberal centrist orientation, has
resisted efforts to limit the number of foreigners through restrictions on
family reunification and has strongly supported political rights for resi¬
dent foreigners, particularly in the context of a unified Europe. The po¬
litical newcomers on the left, the Democratic Socialists (pds), formed
following German reunification, lack experience in foreigner policy but
have tended in most questions to side with the Greens (see party litera¬
tures; cf. Bukow and Llaryora 1989, 35-93; Bade 1990, 35-67) .

The original nature of the admission of foreign workers as a national
economic strategy ensured that both the German Federation of Trade
and Labor Unions (dgb) and the Federation of Employers (bda) have
since had much to do with shaping the conditions under which migrants
live. At first these organizations worked together fairly closely in secur¬
ing foreigners a status in labor issues equal to that of German workers.
Since the mid-1980s, however, while employers have remained close to
the government line on migrant worker issues, the dgb has taken an
increasingly inclusive position that has propelled it toward an alliance
with churches and welfare organizations (Dohse 1982; Bade 1984-85;
Schafer 1985; Esser et al. 1983).

Since the early 1970s, these groups, including Catholic- and Prot¬
estant-based charities as well as voluntary associations such as the Red
Cross, have fuifiUed a lobbying function on behalf of foreign workers
and their famfiies, taking the form of both political and scholarly efforts
at securing recognition of the migrant population’s claim to broad social
equahty as well as to specific rights such as family reunification (Esser
1983; Barwig and Mieth 1987).

On the whole, the foreigners themselves have been unable to exert
much influence on the decisions that structure their existence in Ger¬
many. While a very few naturalized foreigners have begun to establish a
presence in the party system, the disenfranchisement of the overwhelm¬
ing majority has combined with competing national identities within the
group to make concerted action difficult. It is important to note that
resident noncitizens are able, in an advisory capacity, to participate polit¬
ically in a variety of “foreigner councils” that provide input in local
government (Puskeppeleit and Thranhardt 1990; Wichmann 1989; Fed¬
eral Commissioner 1988). Yet, since these councils lack any decision¬
making powers, this form of participation is highly limited in its effec-

44 Ethics of Citizenship

tiveness. Other foreigners’ organizations such as the Council of Turkish
Citizens in Germany, an umbrella group founded in 1993, must rely
primarily on their freedoms of expression and assembly in pursuing their
political aims. In general, these aims include a more secure legal status
regarding work and residence, equality of opportunity with Germans,
political rights, and minority protections such as classes in the native
language for children of foreigners (see Sen and Jahn 1985; Berlin Com¬
missioner for Foreigners’ Affairs 1989; Ozcan 1989; Bischoff and Teub-
ner 1990; Hoch 1994).

Foreigners have found valuable advocates at various levels of govern¬
ment in certain official agencies entrusted with coordinating the integra¬
tion of the migrant worker minority. The Federal Commissioner for the
Integration of Foreign Workers and Their Family Members has actively
pressed for more liberal policies toward the migrants, with occasional
success. At the regional level, the influential Berlin Commissioner for
Foreigners’ Affairs and the Office of Multicultural Affairs in Frankfurt
provide examples of effective activism in the interests both of specific
minority concerns and of mutual tolerance among German citizens and
foreign residents.

It would be remiss not to mention the ever-increasing influence of
external actors on the legal and political membership processes affecting
the migrant minority in Germany. Governments of sending countries,
for example, are able to influence the treatment of their citizens through
treaties with Germany. They also play a role in the organization of com¬
munity life for the migrants, for example through the provision of re¬
sources and funding for religious instruction (Thranhardt 1986; Bade
1990) . A number of the social and economic rights enjoyed by migrant
workers — including the right to family reunification — are guaranteed
by international treaties and customary law. Furthermore, policies devel¬
oped by the European Union ( EU ) and supported by decisions from the
European Court have created a special status for workers from other
European countries in Germany. These workers enjoy freedom of move¬
ment in Europe and are thus entided to residence and work permits in
the Federal Republic. In addition they may vote for the European Parlia¬
ment, and EU policymakers foresee in the future the standardization of
local voting rights for all Europeans who have established residence in
another European country. To a certain extent EU policies dealing with

Membership Debates 45

migrant workers have been broadened to apply to non-EU workers
(Turpin 1987, 93-94; Kiihne 1995) • Nonetheless, the general effect of
the European unification process has been to strengthen distinctions
between worker families from other EU member-states and those from
non-EU countries such as Turkey and the former Yugoslavia.

Of this great variety of actors, the most influential has been the CDU-
dominated government, which, supported by other hke-minded groups,
has succeeded in maintaining a policy of exclusive political membership
modeled on the nation-state principle — on, that is, the ideal of a state of
and for Germans and only Germans. At the same time, this pohcy has
been tempered through the efforts of supporters of a more inclusive
stance. This dynamic process has been reflected in a range of public
debates over questions of German membership.

Three Conceptual Debates

In the early years of the foreign worker migration, their role in German
society was a topic of political discussion only during economic hard
times. Yet, with the undermining of assumptions about the temporari¬
ness of the “guests’ ” stay, and the increasing visibility of a second genera¬
tion of foreigners, especially in the schools, the “foreigner issue” became
politically unavoidable. As questions of policy toward the new minority
became the subject of parliamentary debates and electoral campaigns,
legal scholars, social scientists, and theologians joined politicians in an
effort to define the basic issues at stake. In the last decade or so, three
conceptual debates have been particularly influential in fixing the terms
of the political discussion over foreign residents.

Germany: A Country of Immigration!

Since the mid-1970s, a common assertion in official statements of for¬
eigner policy has been that Germany is not (and cannot be) a country of
immigration. This claim has been amply echoed throughout those parts
of the political spectrum opposed to the incorporation of a foreign mi¬
nority in Germany. The rebuttal that Germany is (and always has been)
a country of immigration has likewise become a byword for advocates of
inclusive policies toward the migrant worker population. The heated

46 Ethics of Citizenship

exchanges over this theme have, on die whole, been characterized on
both sides by dogmatism combined with a failure to specify the actual
point of contention. In actuality, the two sides have tended to address
fundamentally different aspects of the question regarding Germany’s
relation to immigration. On the one hand, disagreement has concerned
the permanence of the foreign worker population; on the other, dis¬
agreement centers on the issue of the formal induction of new members
into the German polity. When both of these points of difference are laid
bare, it becomes clear that both sides are right — and both sides are
wrong.

At first, one major objective of those who denied Germany’s nature as
a countn' of immigration was to prevent the recognition of an estab¬
lished “guestw^orker” minority. In this regard, the question was primarily
a social-scientific one: Have those workers who originally came as guests
become, in effect, immigrants who have turned the Federal Republic into
a plural society? The answer in the negative asserted that most of the
workers intended to return to their home countries and that their pres¬
ence was in fact temporary^ The goal of this claim was to underscore a
particular conception of membership in German society, namely that of
belonging to a continuous, enclosed and homogeneous national culture.
The opponents of this view drew on a wealth of social scientific data to
show that the foreign worker population showed evety sign of perma¬
nence and indeed exhibited all the classical characteristics of an immi¬
grant minority. That the migrants had become de facto immigrants was
undeniable by 1984, when the failure of the gov'ernmentis policy of re¬
migration incentives became clear. Indeed, the extent to which the mod¬
ern West German state was constituted by immigration is revealed when
one considers that including German expellees and repatriates, roughly
one-third of the population before reunification consisted of immigrants
( Bade 1994, 89) . And it is hardly unrealistic to portray the East Germans
as another set of immigrants who migrated into the political system and
society of the Federal Republic.

From the question of the process of immigration we may distinguish
the question of the acceptance of immigration, and it is here that the
conser\'ative position has its most force. In an important sense, whether
or not Germany is a country' of immigration is a matter of political self-

Membership Debates 47

understanding incorporated in legal policy toward admissions and natu¬
ralization. The government has traditionally defined Germany as a coun¬
try of emigration in contrast to classic North and South American coun¬
tries of immigration, states that historically have geared their member¬
ship policies toward the acquisition and legal integration of new citi¬
zens.^ As a result, German naturalization has been legally defined as an
exceptional case and administered accordingly. Consequently it is unde¬
niable that Germany is not a country of immigration, if this is under¬
stood to mean having a political orientation toward the taking on of new
citizens. Moreover, the resulting fact that a negligible number of mi¬
grants have become naturalized supports the assertion that in a formal
sense Germany has not experienced appreciable immigration in the last
decades.

A relativization of this position, however, is called for by the wide
extent to which the migrants have found a legal basis for their presence in
the Federal Republic. It can thus be argued that, insofar as foreign work¬
ers and their families enjoy a secure social and economic citizenship,
Germany has become — in spite of political intentions to the contrary — a
formal as well as de facto country of immigration. Lobbyists for the
foreigners argue that the government should recognize this situation and
complete the legal integration of de facto immigrants by naturalizing
them. Even if this were to happen, however, in the absence of the estab¬
lishment of any mechanisms for accepting new immigration, it would
remain the case that as a matter of political will and official self-definition,
Germany cannot accurately be labeled a country of immigration.*

Inte£iration and Assimilation

As the established nature of the guestworker minority became clear,
“integration” became the keyword of pohcy debates over the foreign
presence in Germany. It was agreed that some measures must be taken to
“integrate” the new minority, yet what this means has been a topic of
disagreement ever since. In a general sense, integration has been under¬
stood to involve the reduction of tensions and the encouragement of
equality between native Germans and the foreign residents. As a result, it
has not been difficult to identify specific measures in the areas of German
language instruction, education, job training, or housing as encouraging

48 Ethics of Citizenship

integration. Beyond this, however, what the broader goals of integration
are, how they are to be attained, and who is to secure them are issues that
have proved fertile ground for the cultivation of ideological differences.

A central concern of this discussion, the relation between integration
and assimilation, has provided the focus for a number of conflicting
positions on policy toward the migrants. Although some have posited
these two processes as identical and others as opposites, for the most part
integration has been seen broadly as the binding together of discrete social
groups in a manner aimed at removing conflicts and inequalities be¬
tween them, while assimilation has been understood as the removal of
differences acting as barriers to cultural homogeneity.’ A consequence of
this usage is that integration fails more readily into the realm of govern¬
ment action, whereas assimilation emphasizes the adaptive act of the
migrants in relinquishing an old identity for a new one.

As objectives in themselves, assimilation and a pluralist model of inte¬
gration do not necessarily favor any particular ideological orientation
toward foreigners.^’ Integration strategies emphasizing the nurture of
distinctive cultural traditions in ethnically segregated classrooms, an ap¬
proach employed for instance in Bavaria, may be supported by foreign
groups committed to preserving their culture in the German diaspora as
well as by those wishing to improve the chances that foreigners will
return to their homelands. By the same token, assimilation may be seen
as a desirable goal both by nationalist defenders of the German culture
and by proponents of social harmony and full equal rights for the mi¬
grants. What distinguishes conflicting ideological approaches is the way
in which they conceive the relation between assimilation and integra¬
tion, that is, whether both are to be pursued and if so, in which order or
with which priority.

One might distinguish (Esser 1983) among models of societies that
are integrated but not assimilated (cultural pluralist), assimilated but
not integrated (marked, for example, by class conflict), assimilated and
integrated (culuirally homogeneous), or neither assimilated nor inte¬
grated (marked, for example, by ethnic strife). Integration will be
viewed by most as desirable, but whether it should be coupled with as¬
similation depends on a normative stance regarding the relative value of
homogeneity and ethnic or cultural diversity. Many participants in the
German discussion understand assimilation as forced Germanization

Membership Debates 49

and reject it as tantamount to an assault on the ethnic identity of foreign
residents.

For the many advocates of both integration and assimilation, the
question arises as to which is to take precedence. Many conservatives
assert that integration in the form of a fully equal position in society can
only follow a completed process of assimilation (Hailbronner 1989a, 79;
Quaritsch 1981, 53-65)- Some of their opponents argue the opposite:
that integration, possibly even including the nurture of separate ethnic
identities, is an essential precondition for successful assimilation in the
long run (Esser 1983, 32-34; Francis 1983; John 1987). The most cru¬
cial point of difference between these views concerns who is to assume
primary responsibility for the overall process. Where assimilation plays
the central role, the burden is placed on the migrants to conform to
German culture, with equality held out as a reward for the arduous
transferal of identity. In the opposing view, establishing the necessary
legal and political equality and promoting tolerance are tasks that fall on
the indigenous population and its government. Assimilation is then ex¬
pected to take place as the natural result of living together peaceably and
in equality.

The discussion of integration since the early 1980s has kept pace with
political developments affecting the foreign workers. Thus the trend
toward recognizing the legitimacy of the migrants’ continued presence
has been reflected in the increasing currency of a notion of integration
emphasizing social and economic equality as well as the preservation of
separate cultural identities — or, alternatively, the development of a new
(that is, not simply German) common identity. Politicians of all stripes
are quick to distance themselves from understandings of integration that
equate it with Germanization. Slowly participants in the debate over
integration are recognizing that the full incorporation of permanent
residents into German life cannot be a one-sided process carried out
through the adaptive efforts of the migrants or by legislative decree.
Mutual tolerance and concessions are required. At the same time, most
involved parties have come to appreciate that assimilation is something
that occurs whether one likes it or not, not so much along ethnic lines as
through the impersonal technological forces of modernization, in a
manner impinging on German and foreign lifestyles alike. If the general
outlines of what integration means have become less controversial, how-

50 Ethics of Citizenship

ever, debate has become all the more heated concerning the sort of
society an integration policy should attempt to create.

The Multicultural Society

In the last decade, the notion of the multicultural society has provided a
vital conceptual conduit for the discussion over how to cope with the
ethnic stratification and increased social tensions in Germany. The term
itself was appropriated from Australian debates over minority policy and
introduced into German academic circles by Protestant scholars in 1980;
it was then injected into policy debates by the General Secretary of the
CDU, Heiner Geissler. The theme has since been invoked in contexts
ranging from immigration polic)' to educational curricula, from social
services to ecumenical debate. Moreover, it has found proponents, often
for different reasons, in the progressive wing of the CDU as well as the
SPD, the FDP, the churches, and the parties of the left. It is, accordingly,
difficult to identify multiculturalism as a single position (Fijalkowski
1991b); it is perhaps best understood as an ongoing theoretical project
fostered through continuous debate. “

There are two basic aspects of this projea, a descriptive one and a
normativ'e one. First, “multicultural societv^’ is used to describe the real¬
ity of cultural div^ersity in German society. At a minimum, it is a factual
claim about the cultural heterogeneity that has come to characterize
Germany in the wake of the post-war labor migration. Taken further, it
asserts that Germany and indeed all societies have always encompassed a
variety' of cultural strands, ev'en if some have been systematically subordi¬
nated and successfully repressed. In this view, the denial of div'ersity in
nationalist ideologies is a harmful distortion of reality that may be cor¬
rected only through the recognition of the multicultural nature of mod¬
ern societies.

A normative component enters the multiculturalist project with the
claim that cultural diversity' should be not only recognized but affirmed.
Both the historical legacv' of German nationalism and the prospect of a
unified European political entity add to the force of this imperative. This
claim establishes a particular context for considerations of how the mul¬
ticultural society should be ordered so as to enable a peaceful and just
coexistence. The central question of multiculturalism in this sense is, as
Axel Schulte formulates it, “According to which point of view' is com-

Membership Debates 5 1

mon life between the native population and migrant minorities to be
shaped, and what role are ‘structural’ dimensions (economy, politics,
laws, etc.) on the one hand and cultural dimensions on the other to
play?” ( 1990, 3). There is of course no consensus regarding an answer.
One can, however, identify a number of issue areas that together con¬
stitute a multiculturalist agenda.

First, multiculturalism defines cultural diversity as a positive value.
This dictates that integration policies should aim not at assimilation but
rather at preserving difference. The question that follows is, to what
extent and for which groups? Are, for example, all migrant workers to be
taken as a group with a distinctive minority culture, or is each na¬
tionality or ethnic group to be treated separately? Are German refugees
from, say, Rumania to be encouraged to cultivate their otherness?

A second issue for multiculturalists is structural equality for non-
German groups. This point is a response to the problem of ethnic strat¬
ification, the systematic disadvantaging of the non-German minorities.
It is an article of faith for proponents of the multicultural society that the
s\}boY6in2ittAusliinder status of the migrants should be replaced by mea¬
sures guaranteeing them equality of opportunity in German society.
Without such a structural reorientation, cultural diversity is doomed to
lapse into ethnic strife. Considerable disagreement, however, surrounds
the question of how this reorientation is to be attained — whether, for
example, affirmative action or even some form of positive discrimination
should be introduced.

Third, cultural minorities should enjoy certain group rights, that is,
some measure of structural autonomy— from other groups, and above
aU from the state. The obvious point of dispute concerns how much.
Some contend that self-sufficient ethnic communities play a positive role
in providing a sense of place for members and in easing the integration of
new arrivals into the society at large. Yet too much autonomy and isola¬
tion, others fear, may result in ethnic segmentation and overall societal
disintegration (Esser 1983 ) . Another point of disagreement is the extent
to which cultural autonomy should be politically institutionalized, for
example in the form of group rights.

A further programmatic feature of a viable multicultural society is
intercultural dialogue. The isolation and separation of cultures does not
bode well for long-term social harmony; according to a catchphrase of

52 Ethics of Citizenship

multiculturalists, instead of an existence “next to one another” {Nebenei-
nander), living “with one anodier” (Miteinander) should be encour¬
aged. Beyond this sphere of agreement, some emphasize the aspect of
mutual tolerance in contacts among cultural perspectives, while others
underline the importance of engaging in argument and not shying away
from conflict within certain boundaries.

Wlaat these boundaries are raises a final multiculturalist topic, namely,
the minimum shared conditions necessary for multicultural coexistence.
Here, tu'o types of conditions are usually debated. One is the overarch¬
ing cultural baseline required for a functional society, which most would
argue includes acceptance of the German language and respect for hu¬
man rights, in particular gender equality. Equally necessary is a basic
institutional consensus over the authority of the constitution and the role
of the state in adjudicating conflicts.

Due to its broadness and flexibility the multiculturalist agenda has
found support in a number of quarters, often for quite different reasons.
The more progressive advocates of the multicultural society see it as a
chance (Miksch 1983) to secure societal stability and to pave the way
toward a new European and — eventually — world order. Multicultural-
ism is also championed by those who see the pursuit of social equality,
the protection of minoritv cultures, and the promotion of intercultural
conversation as a moral or religious duty. Still others see in this project
the enrichment of German society, be it superficially in the form of a
greater \'arien' of ethnic food and folklore, or more profoundly in the
fostering of a more tolerant, cosmopolitan ethos. From a more prag¬
matic perspective, a departure from a monolithic German national cul¬
ture is seen as a dictate of prudence, since demographically the German
population alone is aging rapidly and failing to reproduce itself ( Geissler
1990). Finally, from the point of view of some migrants, the acceptance
and affirmation of their cultural otherness is seen as their (long overdue)
due.

Among those who do not subscribe to the multicultural discourse
there are two camps. Multiculturalism finds opponents on the right of
the political spectrum and critics on the left; together these two groups
sharpen the question of the depth and significance of cultural differences
in German society.

The opponents of the multicultural society emphasize the unity of

Membership Debates 53

national cultures and especially of the German national culture. They
object to the program of multiculturalism on two main grounds. Prag¬
matically, they see the promotion of minority cultures as a suicidal
course that can lead only to ethnic strife, societal discord, and the de¬
struction of German national unity. Foreign residents who wish to stay
should be assimilated; those not capable of being integrated in this man¬
ner should be encouraged to leave. At a different, ontological level, the
acceptance of alien ways of life is seen by some opponents of multi¬
culturalism as imperiling the very essence of the German people. To
expose the German people, understood as a hving organism, to the
alienating influence of a multicultural society would be tantamount to
genocide (Heidelberg Manifesto of 1981, 1986).

Critics of multiculturalism attack it not for underestimating but for
overestimating the unity and significance of culture. They tend to sym¬
pathize with the broad objectives of pluralist integration, but view the
idea of multiculturalism as overly ideological in character (e.g., Hoff¬
mann 1990; Schmid 1990; Radtke 1993). Its ideological nature is man¬
ifested mainly in its hypostatization of societal diversity into a network of
coherent cultures. Because these cultures tend to be identified in national
terms (the Turks, including Kurds; the Vietnamese), critics further ac¬
cuse multiculturalists of supporting the perspective of their nationalist-
conservative opponents. And echoing the American debate over affirma¬
tive action, they express concern that support for cultural diversity can
tend artificially— or at least unnecessarily— to strengthen ethnic identi¬
fication and increase the potential for social conflict. This criticism im-
phes a hope for the long-term development of a society of individuals
whose ethnic identities have withered away.

The discussion over the multicultural society is a membership debate
about the place of foreign members in German society and the shape
their relations to the dominant German culture ought to take. At the
heart of this debate is the issue of the separation of societal spheres, of
whether the cultural realm may be treated as separate from the realm of
politics. Proponents of multiculturalism seek to wed political unity with
cultural diversity on the assumption that the world in which religions,
languages, and ethnic traditions confront one another may successfully
be severed from the world of political, economic, and social organiza¬
tion. Some critics also subscribe to this project. Lutz Hoffmann ( 1990),

54 Ethics of Citizenship

for example, advocates a “multiethnic” (as opposed to multicultural)
societ}' in the context of an overarching “republican” political order.
Opponents, however, uphold instead the nation-state principle: the in¬
trinsic claim of a sacred and monolithic national culture to political
authority in a culturally homogeneous state. As we will see, these dif¬
ferent prescriptions for how to link political structures and cultural iden¬
tity constitute a crucial determinant of conflicting normative positions
on membership.

Three Policy Debates

The various disputes over concepts dealing with the foreign presence in
Germany have been paralleled by debates over membership policy re¬
garding the migrant workers and their families. Three interrelated topics
touching on different aspects of membership will be examined here: the
government’s basic policy orientation tow'ard foreign residents, the pro¬
priety of extending voting rights to these residents, and the advisability
of allowing multiple citizenships.

Priorities in Forei£iner Policy: Integration or Reduction?

With the consohdation of the foreign worker population in the Federal
Republic, the question of state polic)'^ toward this group took a perma¬
nent place on the political agenda. As in other European countries with
guestworker histories, a broad consensus has arisen around two general
goals for foreigner polic\^: limiting the growth of the foreign population
and incorporating it into the overall society. Within this strategic frame¬
work, however, wide differences of opinion concerning priorities and
specific strategies have emerged. The trend in Germany since the early
1980s has been toward ever greater disagreement over the priorities for
policv' toward the non-German population.

In the late 1970s, as it first became apparent that the guestworker
population had come to stay, the spd / fdp coalition government estab¬
lished a set of basic policy' guidelines intended to buttress Germany^’s
claim to not being a country' of immigration. The policy' consisted in a
tripartite strategy' of immigration restriction, repatriation assistance, and
integration. The objective of restricting the numbers of the migrants was

Membership Debates 55

pursued primarily through the maintenance of the ban on recruitment
set in 1973. Repatriation assistance combined financial aid for workers
who wished to return to their homelands with reintegration programs in
the sending countries. Integration, finally, was promoted in two ways:
through attempts to stabilize the residence and work status of migrants
wishing to stay, and through increased access to naturalization. The
overall emphasis of this policy on integration was reflected in the govern-
mends sponsorship of a broad competition for ideas on integration pro¬
grams during 1979-80 (Meier-Braun and Pazarkaya 1983, 52-53).

A major shift in this orientation followed the economic downturn at
the beginning of the 1980s, as unemployment rose sharply and popular
sentiment against foreigners grew. The opposition CDU made foreigner
policy a cornerstone of its campaign and began to exert pressure on the
government to increase state control over the migrant population. The
coalition responded by enacting a set of stricter measures emphasiz¬
ing the reduction of the foreign population; these were not, however,
enough to prevent their loss at the polls. In 1982, a new coafition with
the CDU, csu, and fdp took office and announced its intention of
cutting Germany’s foreign population by half The change of orientation
in foreigner policy was quickly sealed with the adoption of measures that
in effect presented foreigners with the choice of assimilating or leaving.

Superficially the new policy retained the former emphasis on restric¬
tion, repatriation, and integration. These objectives were, however, rear¬
ranged in terms of priority, and the first two were pursued with increased
vigor. The policy’s new focus, restriction, was extended to apply to fam¬
ily reunification, and in the following years the permissible age for re¬
trieving children was lowered, waiting periods were introduced for
bringing spouses from the homeland, and a number of other restric¬
tions, including visa requirements, were enforced. Repatriation efforts
intensified under a 1983 law designed to promote actively the readiness
to return. Most significantly, integration was reconceived as a process
leading solely along the path to naturalization. The fundamental distinc¬
tion between the rights and privileges of citizenship and the human
rights enjoyed by aliens was reaffirmed, and the body of law applying to
foreigners was shaped in a manner emphasizing the subordinate nature
of their status. The aim of this policy was clear: the development of a
permanent minority in Germany was to be prevented at all costs. The

56 Ethics of Citizenship

stratcg)^ for achieving this goal involved limiting the growth of the non¬
citizen population as much as possible, reducing its numbers by encour¬
aging repatriation, and then absorbing the remainder into German so¬
ciety through assimilation and naturalization.

The initiation of this policy unleashed a public discussion over the
foreigner question. The gov'ernment justified its actions on a variety of
grounds. One argument, which found general agreement, was that re¬
strictions on migration were needed in order to ease tensions that could
jeopardize the integration of the present migrants. More controversial
were assertions that the maximum level of acceptance of foreigners had
been reached and that the foreign population must be reduced to free
more jobs for German citizens and to preserve social stability. The claim
that the new polic)' pursued the interests of foreigners, both by strength¬
ening the expressed will of many to go home and by supporting their
“right to a homeland,” met with considerable skepticism.

The most effective rationale for the coalition’s efforts referred to a
particular vision of how German society should be structured. A restric¬
tive foreigner policy was defended as necessary to protect a homoge¬
neous German national culture from an impending collapse into a multi¬
cultural society with minority problems comparable to those in the
United States. The existence of minorities, it was alleged, would gravely
endanger the chances for German reunification. Proponents of the “as¬
similate or leave” approach raised the specter of a future in which a
radicalized Turkish minority bloodily carried out Turkish political con¬
flicts on German streets, sought to establish the cultural and legal hege¬
mony of Islam, and through its high birth rates eventually turned ethnic
Germans into a minority'. Such exaggerated images found a receptive
public. At the same time they generated considerable protest from op¬
position parties, the churches, the labor unions, and many other political
actors.

The aspect of the new policy which drew the most fire from critics was
its fundamentally contradictor)' nature. For many, the notion of increas¬
ing efforts at integration while simultaneously creating incentives to
leave made little sense, even after the government suggested that the
former strateg)' applied specifically to the second and third generation
aliens while the latter was aimed more at the original migrants. This
contradiction, it was suggested, only made more difficult an unwanted

Membership Debates 57

choice forced on workers in many cases unprepared to make such a
consequential decision. Opponents of the policy drew attention to statis¬
tics demonstrating the unreliability of the intention to return, and pre¬
dicted— correctly— that incentives to return would have little success.
Additional doubt was cast on the decidedly unscientific claims that the
tolerance level of German society for foreigners had been surpassed, and
that foreigners were taking away jobs from Germans. Some emphasized
that the foreign workers had earned their place in the Federal Republic,
and that it was unjust to prevent them from bringing their families
together or to push them into the extremely insecure process of remigra¬
tion. Integration, critics finally underscored, cannot simply be equated
with assimilation; rather, it must be sought through active strategies
adapted to the needs and desires of the migrants themselves.

Despite its announced intention of setting its policy into a new, re¬
formed Aliens Act, the government delayed such a step for most of the
1980s. In 1988 a proposal finally appeared, couched in language cham¬
pioning the homogeneity of the German national society (Fleldmann
1989, 215-19) . Its terms were so strict that a unified opposition was able
to force its withdrawal. Soon after, a somewhat milder draft was intro¬
duced and enacted with a haste spurred as much by the need to under¬
mine support for the extreme right^^ as by the expectation of an impend¬
ing SPD majority in the Bundesrat. The new law, which went into effect
on January i, 1991, for the most part simply codified the administrative
practices that had evolved according to the government’s guidelines. It
did include some necessary reforms, such as reduced naturalization re¬
quirements. Yet at the same time it furthered the goals of restriction and
repatriation by instituting strict living space requirements for family
reunification and by considerably expanding the legal grounds for the
expulsion of noncitizens. In addition, it established the duty of social
workers to report data on aliens and opened the possibility of future
foreign labor recruitment under full government control. As a result, this
law may be seen as essentially a continuation of the government’s efforts
at preventing the long-term presence of minorities.

For this reason, the passage of the Aliens Act sparked a new round of
criticism. The new law has been characterized as aimed more at repelling
than at incorporating foreign residents and criticized for sending a mes¬
sage of distrust to those who had hoped for acceptance. Opponents of

58 Ethics of Citizenship

the law claim that the membership status of migrants has been made less
secure in many respects, a development bound to complicate rather than
aid integration. Particularly strong disapprobation all across the political
spectrum has been expressed in response to the overall conception of
membership inherent in the new legislation. Giv'en that migrant worker
families have clearly established themselves in Germany, is it appropri¬
ate to continue to disadvantage them as “foreigners,” particularly when
members of other, in many ways comparable, minorities such as East
Germans and other ethnic German refugees are treated as equals? The
permanent residents, many feel, should have equal rights and should
no longer remain without fundamental protections against the will of
the state. The human rights of these “Germans without passports”
should be given priority over the ideology of German national unity.
Government policy that continues to suppress the multicultural charac¬
ter of Germany society can only cause harm in the long run.

These criticisms bring into focus the primar\' disagreements at the
core of deliberations over policy toward the migrants. The central ques¬
tion is whether the permanent existence of distinct ethnic groups within
German society is to be affirmed or prevented. An important secondary^
question is whether the migrants should be able to choose how they
shape their lives in Germany, or whether they should be forced either to
adapt fuUy to German standards or to leave. These questions will likely
continue to animate the debate over the fundaments of policy toward the
migrants for some time to come.

Votin0 Rights for Foreigners

According to one estimate, roughly ten million European residents are
ineligible to vote because they maintain no domicile in their home coun-
tty and ha\’e not taken on the citizenship of their countty of residence
(Turpin 1987, 71). Hence it is not surprising that in most European
countries some form of political rights for this group has been dis¬
cussed.^^ In the Federal Republic, local voting rights for foreign resi¬
dents were first proposed in 1971 by the churches. A lively debate ensued
over the next two decades. In the course of this discussion, foreign-
voting-rights advocates in the churches, welfare associations, foreigner
organizations, and the Greens were gradually joined by the labor unions,
the SPD, the fdp, and isolated members of the cdu. The federal gov-

Membership Debates 59

ernment, the Employers’ Federation, the CDU, the csu, and parties of
the far right have remained staunch opponents of any such measure.

The debate over political representation for foreigners has focused
primarily on local elections, for two reasons: first, this focus has been the
only politically feasible one, and second, the constitutional situation of
local bodies is, arguably, unique. As a consequence, two types of consid¬
erations — political and legal — have shaped the discussion. For propo¬
nents of voting rights for foreign residents, moral and political argu¬
ments and the constructive possibilities of legislation have been the
means of choice (Zuleeg 1987; Hoffmann 1990; Sieveking et al. 1989;
Franz 1991; Rittstieg 1981 and 1988; Sievering 1981; Bukow and Llar-
yora 1989). Opponents have organized their arguments mainly around
constitutional constraints on extending the vote (Doehring and Isensee
1974; Quaritsch 1981; Hailbronner 1989a, 1989b; Stocker 1989).

The political arguments have revolved around three topics. The first
and most important is the understanding of democracy to be embodied
in policies defining political membership. Here, where foreigner advo¬
cates assert the central significance of subjection to democratic authority
(Betroffenheit) in determining the right to political participation, their
opponents see democratic rights as grounded in a sort of national club
membership. The argument of those who favor allowing long-term resi¬
dents to vote runs as follows: Foreign residents are not in principle
distinguishable from German citizens in the extent to which they are
affected by political decisions; indeed, if anything they are more subject
to state power than their coresidents. At the same time, they contribute
as much as citizens do to the life of the society: they pay taxes and fulfill
all the same obligations as citizens apart from jury duty and military
service, a duty applicable only to men and for which foreigners are at
least theoretically eligible. Together with citizens they are part of a
“community of life and destiny” {Lebens- und Schicksalsgemeinschuft;
Zuleeg 1987, 157). This involvement entitles all long-term residents to
democratic expression — to the right to help shape decisions affecting
this community. For democracy is grounded in the human right of indi¬
viduals to self-determination, and only this right forms the basis of the
state’s claim to sovereignty. In this context the purpose of the vote as a
democratic process is to mediate among the conflicting interests of au¬
tonomous individuals.

60 Ethics of Citizenship

Opponents of the vote for foreign residents counter this view with a
nationalist conception of democracy. For them, democracy is likewise
grounded in self-determination — but in that of a fixed group, namely,
the nation defined in ethnic terms. The task of democratic participation
is not conflict resolution but the building of a unified national will, and
this requires a high degree of homogeneity — of cultural similarity and
common interests (Schmitt 1970, 223-39). The fact of subjection is no
more an argument for inclusion in decision making for residents than it
is for prisoners facing capital punishment. The category of residence
fluctuates constantly and is no substitute for the permanent commitment
to the state demanded by citizenship. For this reason, citizenship — full
and official membership in the body of the German nation-state — is the
only permissible foundation for political participation. Voting rights are
exclusively citizens’ rights. Foreigners may freely choose to take on full
political rights by naturalizing. Yet to extend the vote unilaterally to
noncitizens would compromise GermanVs democratic order and under¬
mine the value of citizenship since foreigners ( i ) have no obligation
of loyalty to the state and indeed as a rule hold competing loyalties,
(2) would not be bound by their decisions since they can return to their
home country' at any time, and ( 3 ) do not share the full range of duties
incumbent upon German citizens.

A second area of difference concerns the significance of voting rights
for the integration of foreigners. The argument of those in favor is that
increased political rights would constitute a step toward the structural
and social integration of GermanVs long-term foreign residents. Having
a political voice, at least in local decision making, would increase the
sense of belonging, of being at home in Germany, of having a stake in
community affairs. This sense of inclusion would in turn encourage
further integration, including naturalization (here the experience of
other countries is often cited as evidence ) . Moreover, establishing the
vote for foreigners would bring Germany into line with EU policy and
thus aid her external integration into a unified Europe.

The counterarguments to this position portray' ey en limited participa¬
tion for foreigners as an obstacle to integration. Foreigners, it is claimed,
are uninterested in y'oting in the first place — or in existentially' belonging
at all — since otheryvise they yvould long ago have taken advantage of the
opportunity to naturalize. To giy'e them the vote yvould not solve their

Membership Debates 6i

problems, rather, it would increase them by removing a major incentive
for them to adapt and to pursue citizenship. As it is, this view holds,
the number of privileges aliens already enjoy has the consequence of un¬
dermining their resolve to return to their countries of origin. More¬
over, regarding the question of European integration, there is simply no
need to prefigure future decisions regarding political rights for foreign
residents.

Additional disagreement, finally, concerns the effects that including
foreigners would have on the political landscape of Germany. Oppo¬
nents assert the effects would be overwhelmingly negative. The vote for
foreigners would lead to a fracturing of pohtical life and a radicahzation
of the populace. It would introduce the danger of the formation of
foreign political parties that might import their own national conflicts
and, for example, attempt to replace the Basic Law with the Koran. At
the same time, foreigners — overwhelmingly workers — would imbal¬
ance the German poUtical spectrum by throwing their weight behind
communist parties ( Quaritsch 1981,52). The effect would be a strength¬
ening of social tensions in general and especially of hostility toward
foreigners. Reserving the right to vote for citizens, on the other hand,
would uphold a source of identity, namely that of the nation, of especial
importance to young Germans.

Advocates of the foreign vote provide a different assessment. They cite
studies showing that foreigners would not significantly depart from Ger¬
man voting patterns (see Koch-Arzberger 1985).^^ Entitiing foreigners
to vote would benefit them not only by giving them a voice but also, just
as importantly, by forcing parties to pay more attention to their needs.
At the same time, it would serve the interests of some German voters by
forcing fairer gerrymandering practices, since at present, districts with
high foreign populations are correspondingly underrepresented. Finally,
the political integration of foreigners would work against a pohtical
radicahzation stemming from the isolation of the foreign population.
The message sent by taking such a step — the departure from a narrowly
nationalistic conception of politics — would moreover help Germany’s
credibihty as a liberal democracy.

The differences in the pohtical debate are reflected in the discussion
over the constitutional implications of voting privileges for foreign resi¬
dents. The basic position of those opposed to extending the vote is that

62 Ethics of Citizenship

such a step is unequi\'ocally ruled out by the German Basic Law. Those
on the other side contend that the Basic Law not only leaves considerable
leeway for interpretation^® but moreover contains warrants for a more
inclusive voting policy that would take account of the fundamental
changes in German society' following the worker migration. The consti¬
tutional issues revolve around five points: the constitutional definition
of democracy', the concept of the “people” or Volk, the status of local
assemblies, the guarantee of equality, and the procedure for constitu¬
tional changes.

The competing views of democracy' in the political discussion find
separate loci in the German Basic Law. The “subjection” notion of de¬
mocracy held by supporters of a broadened electorate finds its ground in
article i : “The dignity' of the human being is in\'iolable. To respect it and
protect it is the duty' of all state power.” This “anthropological premise”
(Hoft'mann 1990, 133) is held to establish the human rights of individ¬
uals as the basis of the democratic state and to justify the political inclu¬
sion of all those individuals whose dignity' is fundamentally contingent
upon the actions of the state. The prevailing nation-statist conception of
democracy', on the other hand, is based on article 20, paragraph 2: “All
state power emanates from the people.” According to this view, not the
individual, but the “people” ( that is, the collectivity' of national mem¬
bers ) is the basis of democratic sovereignty.

This definition of the “people” forms a second point of controversy.
The conventional, restrictive position is that with the term “people”
nothing other than the totality' of German citizens can be meant. The
modifier “German,” it is conceded, is not applied in this connection as it
is in specify'ing other rights. However, it is argued, the “German peo¬
ple” is mentioned in comparable contexts in the (nonbinding) preamble
and in the last article regulating the replacement of the constitution
(art. 146); and this notion, in turn, is defined with reference to article
1 16 as the union of German citizens and those ethnic German repatriates
who enjoy constitutional equality' with them (“status Germans”). This
understanding of “Volk’’’’ as the German nation is backed by a long tradi¬
tion of state theoix' and legal precedents (see Grawert 1984). Propo¬
nents of voting rights for foreign residents argue for a considerably
dififerent understanding of ” They see the wording of article 20 as
deliberately agnostic about the ethnic or national character of “the peo-

Membership Debates 63

pie.” In principle, they argue, there is no reason why “the people” should
not be rmderstood to comprise the entire long-term resident population;
indeed, only such an understanding would comply with the commit¬
ment to human rights in article i . In addition, they point out that even in
the conception of their opponents, citizenship is neither a necessary nor
a sufficient condition for being eligible to vote, since nonnaturalized
repatriates have the right to vote, while certain citizens — those below a
certain age or without the required duration of residence — do not. A
reasonable understanding of ^''Volk, ” they conclude, is one in which Ger¬
man citizens make up the core, but in which there is room for other
members of German society.

The third point of debate concerns the legal admissibility of extending
voting rights at the communal level. At issue is the interpretation of the
“homogeneity clause” of article 28, which specifies that “in the states,
coimties and municipalities, the people must have a representation de¬
termined through a general, direct, free, equal and secret vote.” This
clause is interpreted restrictively to mean that both the group of eligible
voters and the form of democratic process must be the same at all levels
of German government. It follows, according to opponents of the for¬
eign vote, that no separate provisions at the local level are permissible.
The counterargument denies that this interpretation is compelling and
contends further that significant structural differences, for example the
lack of territorial sovereignty, separate the local level of government
from the state and federal levels. Indeed, this argument runs, communal
political associations are in their nature much closer to other sorts of
organizations, such as unions or universities, in which foreigners already
enjoy full membership rights. Representatives of this view attempt to
anchor their claim with reference to the constitutional concept of “local
community” (art. 28, par. 2), which they claim is to be distinguished
from that of the national electorate (Staatsvolk) .

A fourth area of difference regards the question of equality and dis¬
crimination. Article 3, paragraph 3 states, “No one may be disadvan¬
taged or privileged on account of his sex, his descent, his race, his lan¬
guage, his homeland or place of origin, his faith or his religious or
political views.” Local voting rights for foreigners, their opponents in¬
sist, would violate this provision by creating two unequal electorates. By
the same token, advocates argue that denying political rights for perma-

64 Ethics of Citizenship

nent residents on account of tlieir nationality is a direct violation of their
right to equality.

Finally, the tu'o sides disagree over the possibility of clarifying the
constitutional situation through a revision. Citing article 79, paragraph
3, which prohibits changes affecting either the federal order or the
principles advanced in articles i and 20, opponents deny that any such
change is possible. In their view, this prohibition, together with the
univocal nature of the constitutional definition of the electorate at all
levels, effectively renders voting rights for foreigners impossible. Propo¬
nents of these rights, for their part, assert that the room for interpreta¬
tion of the Basic Law makes official changes unnecessary; nonetheless,
revisions that would anchor their understanding more clearly are not
only possible but also desirable insofar as they would provide an oppor¬
tunity for public debate of the basic issues. The passage of legislation
specifying the right of ah long-term residents to vote would be a vindica¬
tion of both the human rights foundation of German democracy and the
democratic wih of the people.

In 1989 SPD-Green coalitions in the states of Hamburg and Schleswig-
Holstein passed resolutions extending voter eligibility in local elections
to certain classes of foreigners. Parliamentary members from the CDU
and csu brought suit against this step, and on October 31, 1990, the
Federal Constitutional Court nuhified the laws on the constitutional
grounds discussed above. In spite of this development and given the
precedence of European law over the constitutions of member states, in
the context of European integration the German Lander were obliged to
extend political rights at least to resident citizens of other European
countries by the beginning of 1996. European policy-makers recognized
the unacceptability of introducing freedom of mobility in a manner that
would compromise equality of political representation ( Sieveking et al.
1989, 72) . As the European Union continues to develop its own form of
political membership, it will become increasingly difficult to maintain a
link between political rights and assimilation to a specific national iden¬
tity (Meehan 1993). In this context, the most pressing issue for eleaoral
policy- is likely to become the extent to which non-Europeans should be
given a political voice.

Viewed in terms of membership norms, the debate over voting rights
for foreign residents reveals a clash over two fundamental determinants

Membership Debates 65

of political inclusion. The first is the £iround for inclusion. At issue is
whetlier the reason for being politically represented is located in an
identity, in actions, or in a context. The arguments for excluding for¬
eigners invoke tlte first two reasons, that a person is entitled to vote
either in virtue of being a German (an attribute conveyed through
birth) or in virtue of having committed oneself to the German state (for
example through naturalization). 22 The third reason, advanced in argu¬
ments in favor of a more inclusive membership policy, seeks to tie the
right to political participation to one’s context of subjection to both state
authority and the consequences of the state’s acts.

The second determinant is the unit of inclusion. Here the question is
whether political membership is to be attributed on an individual or on a
group basis. The restrictive position advances the view that political self-
determination is an action engaged in by groups with internal decision¬
making structures. Persons are entitled to political participation only in a
derivative sense defined wholly through their membership in such a
group. The opposing view focuses on individuals as the primary on¬
tological possessors of political rights. In diis view, it is the authority of
states that is derivative.

From these beliefs regarding die appropriate ground and unit of polit¬
ical inclusion emerge two competing images of political membership.
One image is that of the political community as an exclusive club in
which membership is passed on from one generation to die next and in
rare cases extended to new members under conditions set forth by the
club. Guests are allowed in but rarely initiated. The other image is of a
more open community defined by common circumstances and interests.
Membership is not handed out as an act of benevolence, it is radier open
to all those who are involved to a certain extent in the society and who
wish to belong.

Naturalization and Dual Citizenship

Encouraging naturalization — the induction of new members into the
full rights and duties of citizenship — has been recognized by almost all
participants in the foreigner debate as a desirable policy toward Ger¬
many’s new minority. Some see naturalization as a means for absorbing
die newcomers and preserving the homogeneity of German society; oth¬
ers emphasize the role of citizenship rights in demanding the subordi-

66 Ethics of Citizenship

nate status of the migrants and in aiding in their integration. Naturally,
foreigners also stand to gain a number of material benefits through natu¬
ralization. The question that has dominated debate in this area since the
late 1 970s is, On what terms should citizenship be granted.^

Naturalization has traditionally been conceived of in Germany as an
exceptional act presupposing full assimilation and a clear state interest.
Legally, naturalization has been governed by the German Citizenship
Law of 191 3, paragraphs 8 and 9, and a set of internal guidelines regulat¬
ing the decisions of naturalization officials. The law of 1913 sets forth a
few minimal requirements: a permanent place of residence, a good repu¬
tation, the capacity to support oneself. The administrative guidelines
have established a number of further criteria, including ten years of
lawful residence in Germany, a commitment to the democratic order of
the Federal Republic, a basic knowledge of its political and social struc¬
tures, a certain degree of cultural integration and mastery of the German
language, and a “voluntary' and permanent attachment to Germany.”
This attachment is understood to rule out the cultivation of another na¬
tional identity and culture, for example through activity in foreign polit¬
ical organizations. Finally, candidates for naturalization are required to
pay an application fee and to relinquish all other citizenships.^^ When all
these conditions are satisfied, a large area of discretion remains for natu¬
ralization officials. Naturalization is to be granted only w'hen it lies in the
interest of the state, that is, when the apphcant is seen as a “worthy
addition” to society whose acceptance is politically, culturally, and eco¬
nomically desirable (cf Berlin Commissioner 1990).

This policy' is among the strictest in Europe, and Germany, despite the
fact that roughly tw'o-thirds of its migrant population fulfill the basic
criteria, has had far and away the lowest rate of naturalization among
European countries with guestworker populations.^^ Several factors
contribute to this. Until a recent reform, the fee represented a consider¬
able barrier to many. Beyond the financial aspects, in the \'iew of most
foreign residents the overall cost of naturalization has been too high, or
the benefits too low. Many feel unwanted by German society and recog¬
nize that citizenship in itself cannot solve problems of inequality and
discrimination. More important, nearly all are unwilling to sever their
ties to their homeland. Doubdess there is some truth in the claim of

Membership Debates 67

some politicians that, in light of the status they already enjoy, many
migrants simply do not aspire to more.

In the conviction that a permanent, disenfranchised minority is, in the
long run, insupportable, policymakers of all persuasions have produced
proposals for easing naturalization requirements and thereby lowering
the cost of citizenship.^® One oft-repeated suggestion — establishing a
claim to naturalization for first- and second-generation migrants fulfilling
basic requirements of long-term lawful residence and self-sufficience —
was incorporated in a limited form in the recent Aliens Act ( arts. 85 and
86) . Another proposal involves a one-time decree extending an offer of
German citizenship to guestworkers along with an option to refuse it
(see Hoffmann 1990, 168). In recent years the parties of the left have
argued for introducing a right to naturalization with birth in the Federal
Republic (jus soli) to ail with at least one parent born in Germany. An
alternative strategy would legally declare the migrant worker families
“status Germans” in the same sense as German repatriates, thus qualify¬
ing them for all the constitutional rights due to “Germans” — including
the claim to be naturalized upon application. With the exception of this
last, hardly feasible proposal, however, none of these strategies comes to
terms with the problem at the heart of naturalization pohcy regarding the
migrants: the demand that one give up one’s former citizenship in order
to take on full German membership.

There is no doubt that the official refusal to accept dual citizenship
is the main determinant of the reluctance of migrants — especially the
Turks — to naturalize. For members of this population, giving up one’s
citizenship is attached to great costs, both symbolic and material. For
one thing, it is perceived as a betrayal of one’s country, people, and
relatives. First-generation migrants in particular are defeated by the
prospect of breaking their ties to family in the homeland and giving up
their hope of eventually returning. Even for younger members of this
community, important ties to the homeland exist that often do not stand
to be replaced through the German society. At the same time, the loss of
citizenship has weighty legal and financial consequences in the home¬
land. Thus, former citizens require visas to return to their country of
origin and — in the Turkish example — lose the rights to operate busi¬
nesses, to own land, and to inherit. The deterrent effect of these factors is

68 Ethics of Citizenship

reflected in a poll in Berlin in which 6i percent Turkish and 72 percent
Yugoslavian respondents said they would apply for German citizenship
if they w'ere not required to give up their old one (Bischoff and Teubner
1991, 173).

For these reasons, considerable debate has arisen over the policy of not
allowing dual citizenship. The various proposals for easing naturaliza¬
tion have each appeared in tw'o versions allowing or prohibiting the
maintenance of other citizenships. Some support has been garnered by
the Federal Commissioner for Foreigner Affairs for instituting a type of
dual citizenship already employed by Spain together with certain Latin
American countries. According to this model, citizenship in the country
of residence is understood as “active,” meaning all duties and rights are in
force, while other citizenships are seen as “dormant” and only to be
activ'ated through the transferral of residence. Such an arrangement re¬
quires a complex set of treaties, however, and for this reason many in¬
stead advocate simply allowing dual citizenship as it arises.^* In general,
the discussion of dual citizenship has encompassed five main topics: the
legaliU' of allowing double citizenship, its desirability, the problem of
loyalty, the question of inequality, and the likely effects of such a policy.

Strictly speaking, naturalization officials are bound by neither interna¬
tional nor national law to refuse citizenship to those unprepared to give
up other national attachments. However, as opponents of dual citizen¬
ship are quick to note, under customaty international law, states are in
no way hindered from including such limitations in their own citizen¬
ship policies. Moreover, a positive legal basis for the prevailing policy
exists in a treaty from 1963 aimed at reducing instances of multiple
citizenship and preventing conflicts over mandatoty military' ser\'ice
among Council of Europe countries. This treaty has been accepted in
court cases as the basis for the administrative ban on dual citizenship
worked out bv the Minister of the Interior and individual states. Dual
citizenship supporters point out, how'ever, that the treaty itself does not
license denying naturalization to potential dual citizens; rather, its letter
obligates states to denaturalize those of their citizens w'ho have taken on
another citizenship (Zuleeg 1987, 255-62). In addition, they challenge
the legitimacy' of the central role in naturalization policy that the Minis¬
try' of the Interior, on the basis of a law dating from the Nazi period,
enjoys w'hile at the same time they deploy constitutional arguments in

Membership Debates 69

favor of the position that naturalization policy is a matter for individual
states rather than the central German government (Rittstieg 1990, 131-
40).

The doctrine at the heart of the 1963 treaty — that multiple citizenship
is a general evil to be avoided whenever possible — is also controversial.
The argument against dual citizenship is that for the persons and states
involved, it results in disadvantages that considerably outweigh any ad¬
vantages it may bring (Kammann 1984). Dual citizens must contend
with an unclear legal status, above all, in matters of international private
law; their countries are unable to extend them diplomatic or consular
protection in their other country of citizenship; in addition they may
face doubled tax or military obligations. Opponents of this view argue,
first, that multiple citizenship is unavoidable. The establishment of gen¬
der equahty in many jus sanguinis pohcies has alone meant a massive
increase in the number of children of binational marriages who now
receive both citizenships. In Germany, many additional dual citizens are
accounted for by German repatriates (who are not forced to give up
their other citizenship) and by foreign citizens granted German status in
order to participate in professional sports.^^ Second, the argument runs,
the scope of dual citizenship has meant that conflicts and other disadvan¬
tages must be dealt with in any case — indeed, many have already been
satisfactorily regulated. Thus, techniques such as the principle of “ef¬
fective citizenship” (membership in the country to which one is most
strongly bound) have been developed to resolve legal unclarities. The
above-mentioned treaty has contributed greatly to resolving the (almost
exclusively male) problem of multiple military obligations. In general,
this view holds, what few problems remain either may be resolved with¬
out much trouble or wiU faU away through international processes such
as European integration.

Perhaps the main objection to double citizenship is often expressed in
the catchphrase, “One cannot serve two masters.” Double citizenship is
seen as leading to inevitable conflicts of loyalty, which in situations of
crisis such as war produce dangers for the citizen as well as the countries
involved. According to this view, the total and undivided loyalty of
citizens is a fundamental requirement for the democratic order of the
nation-state (Hailbronner 1989a). Citizenship is seen as an ultimate
bond of commitment, a manifestation of a unique, indivisible, sacred

70 Ethics of Citizenship

loyalty to one’s nation (Brubaker 1989b). Correspondingly, naturaliza¬
tion is conceived of as a rare and solemn transfer of the profound dedica¬
tion presupposed by the fundamental privileges and duties of member¬
ship-above all, military^ obligation and political rights. The tendency of
this position is to view the interests of the state in matters of membership
as supreme.

The opposing v'iew challenges this assumption and asserts the primacy
of citizens over the state. Here the most important criterion for citizen¬
ship is not the dictates of state polic}^ but rather the free consent of the
individual. It is incumbent on the state to merit the loyalty of its mem¬
bers, and one way it may do this is by guaranteeing their full rights and
equality. This position further attacks the idea that loyalty is indivisible
by posing the question. In a society that tolerates cultural difference,
why can one not remain loyal both to this order and to his or her nation
of origin .> The answer that proponents of dual citizenship supply is that
there is no reason why support for the democratic system of the Federal
Republic should require giving up non-German national identities. Ad¬
mission to citizenship may rightfully require loyalty to the German polit¬
ical order, but not to the German ethnic nation. What is needed is a “de-
ethnicisation of demands for assimilation” (Fijalkowski 1991b).

An additional claim of defenders of current German policy is that
allowing dual citizenship would establish unfair advantages for certain
groups, resulting in an unjustifiable inequality of membership statuses.
Two classes would emerge, one with the normal rights of citizenship and
one with voting privileges in tw'o states, as well as the additional right to
withdraw to another country' when wished. Opponents meet this argu¬
ment with the reminder that the sizable population of ethnic German
repatriates already has a practical right to dual citizenship. In addition,
they point out that since v'oting rights in general presuppose fixed resi¬
dence, in practice double voting rights do not exist as a rule (Kaskin
1990, 43-44). For cases in which they do, for example in the European
Parliament, two views prevail. One is that double voting rights should be
ruled out; the other is that a double \'ote where two memberships are
legitimately held is unobjectionable (Bade 1990) .

A last area of disagreement concerns the effects a policy' allowing
double citizenship would bring. As in other areas of debate over for¬
eigner policy', radically different assessments exist of the impact more

Membership Debates 71

inclusive policies would have on integration. The conservative position
continues to hold that only naturalization at the end of a long process of
assimilation will ease the societal tensions surrounding the migrants, and
diat only stricdy regulated citizenship attribution will contribute to bet¬
ter relations among states. The opposing line is that successful large-scale
integration requires full legal equality as a precondition, and that to
allow multiple citizenships is to move in die direction of cooperation
and closer ties among nations.

Defenders of the German nation-state fear that allowing jus soli and
dual citizenship would compromise German traditions and devalue cit¬
izenship. They also fear that a population of dual citizens would give
other countries an unwarranted influence on German politics. Both
these worries are viewed by their more internationally oriented oppo¬
nents with equanimity. Advocates see the acceptance of dual citizenship
as a positive step away from a nation-state ideology shaped by the legacy
of National Socialism, the doctrine of German blood, and the myth of an
organic Volkskorper (Decision of the Bundesverwaltungsgericht E 8,
340, cited in Franz 1990b, 195). Finally, however, it is not clear how
they would cope with a last concern of their opponents, namely the long¬
term legacy of double citizenship. For many, the prospect of a thor¬
oughly assimilated population in the Federal Republic still holding for¬
eign citizenships, or worse, an emigrant population in, say, Turkey,
with no more ties to Germany other than German citizenship, remains
unsettling.

An overview of the discussion of naturalization and dual citizenship
reveals differences on several basic aspects of membership. One question
is whether the extension of citizenship is to be seen primarily as a right of
the applicant or as an act of generosity carried out by the state on behalf
of its full members. A related question is whether in its essence citizen¬
ship as an institution should be shaped by state interests and require¬
ments, in which case citizens are largely reduced to subjects, or whether
it should conform to the real ties and conditions experienced by the
individual. A third issue is whether the decision to leave or assimilate
may rightfully be demanded by the host state, or whether an obligation
exists to reduce as much as possible coercive influences on the decision to
apply for citizenship. Bound up with this issue is the question of the
extent to which citizenship may be conceived of as a willed attachment.

72 Ethics of Citizenship

and the extent to which it is an involuntary category. A final issue high¬
lighted in this debate concerns the type of assimilation required for
acceptance into citizenship. The question here is whether or not assim¬
ilation into the structures and commitments of the state should suffice,
or whether a cultural assimilation may legitimately be demanded as well.

Five Conceptions of Political Membership

How might we best characterize the basic positions at odds in the mak¬
ing of German membership policy.^ A common interpretation of this
process understands it as, at root, a contest between nationalism and
republicanism.^* On this view, two constitutionally anchored political
ideals are locked in a struggle for dominance: the traditional German
nation-state versus a democratic order grounded in human rights. This
conffict inevitably surfaces in discussions over political rights or natural¬
ization for foreigners, pitting defenders of the integrity of the German
national culture against supporters of a more diverse, inclusive, egali¬
tarian society. If the Federal Republic is to succeed in establishing itself as
a credible democratic state, holders of this interpretation argue, it must
place the universal values of the liberal republic above the nation-state
principle and establish a basic equality of rights for all residents indepen¬
dent of nationality. “Constitutional patriotism,”^^ as Jurgen Habermas
(1987) argues, must trump national patriotism.

There is much to recommend this analysis. Nonetheless, the dichot¬
omy it assumes fails to do justice to the complexity of the conceptions of
membership that clash with one another in debates over Germany’s
foreign residents. One reason for this is that the distinction betw'een
republicanism and nationalism is drawn too sharply. Many supporters of
a German national state have incorporated core republican ideas into
their position and are thus willing, for example, to concede most basic
rights to non-Germans. At the same time, alongside its cosmopolitan
tendencies the republican view also echoes the nationalist position by
upholding the notion of the state as a fixed territory' set off from others
and integrated under a particular constitution. A second shortcoming
of this classification is that it fails to take account of trends diat have
undermined citizenship as the foundation of state membership. Its as-

Membership Debates 73

sumption that an equal citizenship status for all should be the goal of
membership policy is not shared by aU parties in the debates.

The preceding discussion of membership debates has shown that a
complex set of normative questions serves to distinguish the various
views on how foreigners should be treated in Germany. What is the
relationship between cultural identity and political membership? Does
democracy require cultural homogeneity? Is political membership best
assigned on grounds of individual commitment, subjection to the state,
or membership in an ethnic community? Is it a right? A privilege? May it
be earned? Answers to these questions necessarily invoke interrelated
beliefs about the purpose of political membership, the basis on which it
should be distributed, and the form it should take. These beliefs may be
explicit or implied; taken together they constitute more or less coherent
orientations toward political membership. Reflected in German mem¬
bership debates are at least five fundamental normative orientations to¬
ward membership, which I call the closure, culture, choice, coexistence,
and cosmopolitan positions. These positions, it should be emphasized,
are something like ideal types that as a group represent the spectrum of
responses to the complex of normative issues regarding German political
membership. As it happens, they correspond — very roughly — to the
stances of, respectively, the far right, Christian, fiberal, social democratic,
and far left parties in Germany.^^ The following sketches characterize
each position with reference to its attitudes toward equality, diversity,
and the meaning of political community. In addition, I suggest how
these attitudes lead to different membership strategies and incorporate
differing assessments of the nation-state system.

The closure position assesses membership on the basis of belonging to
a racial or ethnic entity. Represented by the slogans “Germany for the
Germans” and “Out with Foreigners,” this view posits political partici¬
pation as the exclusive domain of a closed community defined through
heredity. The purpose of political organization is the preservation of the
group conceived as an ontological entity. “Peoples,” according to this
view “are (biologically and cybernetically) living systems of a higher
order with distinctive systematic characteristics which are passed on ge¬
netically and through tradition” (Heidelberg Manifesto of 1981, 1986) .
Attempts to integrate foreigners would lead to the destruction of this
entity. For this reason, the presence of members of other peoples is not

74 Ethics of Citizenship

to be tolerated in the long term. When necessar)', foreigners may be
allowed into such a society, but only for limited purposes and imder a
hindamental denial of membership rights. In this view, the bounded
equaliu' of full membership is reser\'ed for die ethnic group, and diver-
sit)' is perceived as a fundamental threat to be avoided at all costs.

The culture position differs from this view in two important respects.
The basis of belonging is defined in terms of culture and commitment to
the nation instead of in purely edinic terms. And the society is not wholly
closed but rather open to new members willing to transfer their national
loyalty and to take on a German cultural identity. This view, which has
marked the approach of the German government since the early ipSos,^^
presents foreigners with the choice of assimilating or being excluded.
The premise is that the democratic order of the state ( as opposed to the
hypostatized nation) depends on the basic cultural homogeneity and
indivisible loyalty of its members. Democracy may function fully only in
a society limited to like-minded political actors; to tolerate the growth
of cultural minorities is a recipe for chaos. Membership policy should
therefore aim at preserving a homogeneous culture. Thus the basis of
inclusion becomes the possession of certain central characteristics of the
national culture, including the language and an identification with the
German community. Membership is to be extended only to the extent
that it accords to the interests and will of the group itself ( Hailbronner
1989a) . A foreigner may be granted the rights and responsibilities of fuU
membership if it is recognized that he or she ( i ) has assimilated to the
degree demanded by the state, and (2) is prepared to pledge exclusive
fidelity to it. If these conditions are not met, then certain basic rights may
legitimately be denied and his or her departure may be actively encour¬
aged. Here, equality of status is bounded by participation in the national
culture. Diversitv' is to be discouraged.

The central value in the choice approach is the freedom of the individ¬
ual. In order to maximize the sphere of choice, the option of fully be¬
longing or leaving is replaced by acceptance of a wide range of degrees of
membership. Here, the guiding principle is that no coercive pressure
should be applied to the prospective member. There should be neither a
demand to assimilate nor pressure to leavx; vv'hether a foreign resident
pursues citizenship or setdes for liv ing with a more uncertain and limited
resident status should be that person’s free and independent decision.

Membership Debates 75

The contours of membership arrangements should be tailored to the
needs of the various sorts of members, with an eye to maximizing their
ability to shape their life plans. It may well be the case that many mi¬
grants in Germany are happy to remain politically and socially margin¬
alized foreign citizens. For this reason, a category of “denizens” with
secure residence status and limited political rights should be tolerated.
At the same time, in order not to discourage naturalization, the option of
accepting the risks and benefits of dual citizenship should remain for
individuals. In accepting a plurality of unequal statuses matched to the
level of commitment of members, this model encourages institutional
as well as cultural diversity and moves beyond traditional notions of
citizenship.

The coexistence orientation toward membership envisions cultural di¬
versity under the aegis of political and social equality. The basis for
inclusion is membership in the state society (that is, involvement and
participation in the economic and social structure of the community).
The main measure of this sort of membership is the duration of resi¬
dence, the assumption being that after a certain amount of time — say,
five to ten years — one becomes integrated nolens volens in the society.
This integration, combined with the fact of subjection to state power, is
held to provide the normative basis for pohtical inclusion. All members
in this sense are entitled to full political membership, contingent upon
their commitment to observing the order ensconced in the constitution.
For this orientation, citizenship is not contingent on assimilation; it is
rather established by the fact of structural integration into the society.
Cultural minorities are not to be suppressed. Indeed, cultural identity is
seen as a right of members that is to be ensured or even protected
through political measures. Other citizenships do not compromise the
basis for political rights, although there is no reason to encourage them.
In sum, citizenship based on coexistence implies full equality of rights
among members of the fixed resident population of a given territorial
organization, as well as a positive assessment of cultural difference.

A cosmopolitan stance, finally, grounds claims to political membership
in the worth and dignity of the individual. On this view no admissible
justification exists for confining basic rights to a certain hereditary group
or political club. Political representation is a human right due all per¬
sons— or at least all adults — in a given territory, irrespective of their

“6 Ethics of Citizenship

national or st^te affiliation. Other rights as w ell are uew ed as linked
primarily with where one lix es. The purpose of any goyemment is to
sen e the human rights of its resident population. On the whole, this
^^ew• tends tow ard the separation of political rights and traditional cit¬
izenship. Proposals for full yoting rights for foreigners, or for a “settlers
law-" that would establish the full equalin' of long-term residents and
citizens thus fall within this rubric. Cosmopolitans argue for op>en bor¬
ders and global politics, and their position is fundamentally opposed to
the nation-state sx'stem and the institution of state citizenship. Member¬
ship is conceiyed in the Enlightenment terms of cosmopolitan .solidarirv.
The more utopian strains of this orientation aim at a socien" in which
national associations haye been transcended. The equalitx' sought by
cosmopolitans is unbounded, and while diyersin' is tolerated, it is hopol
that a harmonious world culture may be de\elop>ed in the long run.

In these p>erspo:ti\'es the task of democraa" is concei\ ed of respxctiyely
as the c\clusi\'e preseryation of the ethnic group, the maintenance of a
society of cultural and political equals, the libertarian maximization of
indixidual free choice, the regulation of order among di\ erse constitu-
tix e groups, and the fulfillment of inherent human dignitw These orien-
utions are in essence normatiye logics of membership that serve to jus-
tif\' the spodfic arguments made in debates o\ er foreigner policx; They
stand in yarving relation to the current structures of societal membership
in Germany, which waver between national and posmational forms (see
Soysal 1994: Baubock 1994)- In these positions, the possibilities for
ditferent conceptions of membership are by no means e.\hausted. At the
same time, these constellations of beliefs are not arbitraiy. They inform
policy debates over citizenship and political rights in Germany because
the\' draw on and embody entrenched traditions of Western thought on
political membership. In order to engage in a critical assessment of these
positions it is necessary to say more about their historical provenance
and broader philosophical context.

Chapter Three
Political Anthropologies

I’ n the arena of contemporary German membership debates five
basic conceptions of citizenship contend against one another. The
task of this chapter is to assess their strengths and weaknesses. But
before embarking on such a task, something must be said about
. both the nature of the views involved and the criteria for judging
their respective merits.

What separates these conceptions of citizenship .> What is the nature of
their disagreement-* As competing normative conceptions of political
membership their differences are not simply attributable to failures of
reasoning; it is not the case that a single ethically correa method of
defining political membership might be determined if only the proper
conclusions were obtained, in a rational and consistent fashion, from ob¬
jective premises about political order. Nor is their disagreement purely
of an empirical nature, although some of their differences revolve aroimd
their divergent interpretations of social scientific data. At issue, rather,
are conflicting accounts of the nature of human agents, the purpose of
their communities, and the form their political organizations should
take. These orientations embody, in short, what I will call conflicting
political anthropologies.

A Methodolopfical Excursus

“Since there are many forms of government there must be varieties of
citizens,” declared an influential political thinker long ago. In his Politics,
Aristotle develops a typology of governments based on their divergent

78 Ethics of Citizenship

conceptions of the citizen and then goes on to describe monarchy as the
“first and most divine” form of government (1941, bk. 3, especially
chap. 5, 1278a 15-18; bk. 4, chap. 2, 1289a 40). Aristotle’s method, if not
his conclusion, lies at die root of the approach I take to assess the various
positions on membership reflected in the German debate. Arguments
about who should or should not be accepted as citizens necessarily con¬
tain premises about the political nature of people — about how they act,
die extent to which they may be conceived of abstracdv as individuals or
as groups, their capacities for knowledge, their relation to the world in
which they live, and the source of moral constraints on them. For in¬
stance, as we have seen, arguments that would ground citizenship in
ethnonational membership involve a quite different view of human ac¬
tors and the purposes of political community than, say, arguments that
invoke an individual human right to democratic representation. But
how are such differences to be resolved.^ Some may claim, as Alasdair
MacIntyre ( 1984) does, that they represent the clashing of incommen¬
surable traditions of thought on morality and politics. In actuality, how-
ev er, the picture is somewhat more complicated.

The concepts deployed in contemporaty debates on citizenship in
Germany and in other Western countries do not spring full-grown from
the furrowed brows of politicians.^ They are, rather, part of a rich legacy
of thought on politics and human nature. Western ideas about democ-
rac\' and the citizen have emerged and been refined in the course of
ongoing debates about questions such as the form of the perfect state,
the source of sov^ereigntv, the nature of democracy, and the basis of
political obligation and the right to revolt. Political anthropologies re¬
flect the presuppositions of seminal thinkers as w'ell as those of later
theorists who have reinterpreted them and applied them in new sur¬
roundings. The changing religious context of discussion has also deeply
informed conceptions of the human subjea of politics in Western cul¬
tures. These understandings have been stamped by the Hellenistic, Ju¬
daic, and Christian traditions, shaken and broken in the cosmological
and epistemological shift to modernity, and reforged and reinvented in
the battle between the secularized humanism of the Enlightenment and
the sacralized nationalism of the Romantic Era.

Political ideas develop in a dialectic not only with other ideas but also
with their environment. Thus political anthropologies have been formed

Political Anthropologies 79

in, and have come to reflect, concrete historical communities, even as
they have conditioned the evolution and occasional restructuring of
these settings. Our inherited ideas about democratic membership are in¬
delibly marked by their origins in those societies and periods in which
the institution of citizenship has played a prominent role — most nota¬
bly, in the Greek city-states of Athens and Sparta, in republican and
imperial Rome, in medieval and Renaissance cities such as Geneva and
Venice, in the fledgling United States and revolutionary France, and in
modern nationalist and welfare societies. Arguments about the proper
nature and scope of citizenship are to a large extent culture-bound, in
that they most often take the form of either apologia for or criticisms of
policies reflecting the political status quo in a given society. For this
reason, we are as unlikely to accept Aristotle’s criticism of democracy as
we are to think that his idealized conception of the polis is a viable
political alternative for our day and age.

Yet bereft though it may be of its context, Aristotle’s theory re¬
tains a certain relevance today through its embodiment of a fundamen¬
tal attitude toward politics, a particular view of the human as a po¬
litical animal — dL being that attains fulfillment only in a cohesive and
well-governed community. And other conceptions from other eras and
societies likewise continue to exert an influence on contemporary imagi¬
nations. For our critical assessment of contemporary accounts of mem¬
bership in the demos, it is necessary to gain an understanding of how
these historical views of the citizen continue to play a role in political
discussions of the enduring question. Who belongs and on what terms

One way to do this would be to examine “traditions” of thought on
citizenship. There is, of course, no dearth of continuities among theories
of political membership from different eras; indeed, identifying tradi¬
tions has become an industry of its own in recent years. Consequently,
it is possible to portray the contending positions in contemporary de¬
bates as representative of the “republican” or “virtue” tradition ( Pocock
1975; Oldfield 1990), the “common-law” tradition (Whelan 1981), the
“cosmopolitan” tradition (Fleater 1990), and the “consent” tradition
(Schuck and Smith 1985) of citizenship. As tools of analysis, these con¬
structions represent valuable devices for characterizing common lines of
thought in different thinkers; they also help in understanding the history
of central terms and institutions. However, at the same time they often

8o Ethics of Citizenship

suggest the discreteness — perhaps even the incommensurability — of
different lines of thought that in fact may have much in common.^ More¬
over, a focus on traditions is susceptible to the danger of emphasizing
continuity at the expense of attending to the ways in which socioeco¬
nomic conditions and power relations shape particular theories.^ Most
decisively for my purposes, employing the idea of traditions suggests
that political theories may be compartmentalized and categorized as self-
contained wholes. My interest, however, is in conceptual elements often
shared by rather different thinkers — in the building blocks, as it were, of
a variety of more developed systems of political thought.

In my analysis, instead of speaking of traditions, I make reference, in
a style similar to that of Hannah Arendt (1958), to some common
anthropological images of the citizen that have, in various shapes and
forms, emerged repeatedly in normative theories of political member¬
ship. While the citizen has been imagined in many ways by many dif¬
ferent theorists, I consider three basic anthropological images that have
been particularly influential in the development of membership practices
in the Western world. These images, I propose, may play a heuristic role
in assessing the contrasting positions in the German debates.

Who is a citizen A citizen, according to one view, is a person who is a
native member of a particular group or communal entity with a historic
claim to self-determination — for example, a born and bred Swede, or
Inuit, or Jew^, or Tibetan. A citizen, from a different perspective, is some¬
one who actively commits himself or herself to being a participant in the
political community — say, an emigrant come to join and participate in
Plymouth Colony. Or a citizen, according to a third account, is anyone
who fulfills certain objective, universal criteria dealing with membership
in a given territorv' — for instance, a free inhabitant falling under the
jurisdiction of Imperial Roman Law. These three images of political
personhood — the communal self, the voluntary self, and the universal
self— do not, it must immediately be noted, necessarily exclude one
another.^ Rather, each captures a powerful and arguably essential aspect
of what it means to be a member of a political community. The compel¬
ling question, indeed, is not which one of these images is objectively the
best portrait of the ideal citizen, but how all three are to be balanced with
one another and whether they may be fashioned into an overall account

Political Anthropologies 8 1

of citizenship that is both coherent and appropriate to its social and
political content.®

One problem in balancing these images comes from a tension among
their respective ontological commitments, for each assigns a primary
value to a different anthropological unit. To emphasize the communal
self is to establish the ontological priority of the group: Each person’s
status becomes defined through his or her acceptance in the group and
through decisions made by the group or its leaders. By way of contrast,
the universal self takes as its frame of reference all of humanity, so that
one’s particular political membership is lexically subordinated to one’s
membership in the human race. Meanwhile, theories premised on the
notion of the voluntary, self-constituting subject privilege the individual,
exploring membership as a status one determines or accepts for oneself.

These respective foci give rise in turn to competing normative con¬
texts for resolving questions of membership. With regard to the commu¬
nal self, the relevant criteria of justice are seen as group-specific, deter¬
mined with reference to the values of the community in question. In
ethical conflicts over who belongs to the group, Sittlichkeit possesses the
highest authority, and the stranger, excluded, has no court of appeals.
Insofar as the citizen is conceived of as a universal self, however, more
objective rules are held to apply. Impartial considerations regarding a
person’s relation to the society in question (whether or not he or she is
protected by it, is subject to its laws, or contributes to its well-being) —
judged without reference to that person’s particular characteristics — will
be taken as the basis for membership decisions, not that person’s heri¬
tage. The rationale behind these decisions is grounded in convictions
about human beings generally, and in notions of justice on a universal
scale. Finally, in settings where the voluntary self holds the stage, the self-
constituting individual is understood to be the arbiter of meaning and
value, the only actor qualified to assess his or her ends and to determine
his or her political allegiances. In this rather existentialist framework, the
willing political subject becomes the sole creator of political obligations;
criteria regarding membership receive their validity as posits of the indi¬
viduals constituting society.

Variations on these images have been employed by thinkers through¬
out the Western political tradition, and over time they have become

82 Ethics of Citizenship

associated with important themes or motifs in the discourse on member¬
ship. Three of these motifs help to illustrate the manner in which these
images are often applied. The concept oi soverei£inty — the incorporation
in a single gov erning entity' of legitimate authority over an entire com¬
munity and territory — has often been enlisted in the service of claims for
the hegemony of the communal entity in determining membership (see
Hinsley 1986). Theories in which the self-constituting or voluntary self
has played a central role have tended to make use of the metaphor of
covenant or, more prosaically, contract in their descriptions of the basis of
societal organization (see Gough 1978). And arguments about the uni¬
versal self as the basis of citizenship have often invoked some form of the
idea of natural law, including natural rights and human rights (see Pas-
serin d’Entreves 1970; but also Gierke 1957) •

The political-anthropological images of the communal self, the volun¬
tary' self, and the univ'ersal self and their accompanying motifs help de¬
scribe and differentiate the normative structures embedded in the com¬
peting conceptions of membership with which we have to deal in the
German case. There remains the matter of how we might then evaluate
these positions. Giv'en the historicity of political arrangements, we can¬
not simply ask what the best means for defining political membership
generally' is. We must ask what means of determining political member¬
ship is best suited to a situation such as that which currently prevails in
Germany and other like states.

In the view I propose, membership positions may be judged accord¬
ing to the extent in which they ( i ) exhibit a balanced concern with the
primary' values of citizenship ( namely community, agency', and rights;
see below), and (2) do so in a way adapted to the characteristic needs
and capacities of humans in their current social env'ironment. In short,
we should favor those conceptions of political membership that contain
the most insightful understandings of human nature. This ty'pe of ev al-
uation might be called a modest naturalist approach, for while I vv'ant to
say that the best policies are those that best assess the good for people as
they really are, I do not wish to claim that the human good is a static or
objectiv ely ascertainable value. Rather, I hold that vv'e can argue about
human nature and human goods only in a relative and contextual way, by
tty'ing to show, for example, that some positions construe people in a
manner so indiv'idualistic as to be irreconcilable with our experiences of

Political Anthropologies 83

commonality; or that some theories do not credit persons with the sense
of moral agency presupposed even by the very act of theorizing; or that
some accounts provide a more plausible view than others of the moral
significance of economic and cultural coexistence. The more a theory of
politics succeeds in matching its conception of human goods to existing
moral conditions, the greater normative force it will have.

A corollary of this approach is that while certain sorts of views may
simply be universally unacceptable, within a certain range societies may
vary in what constitutes a suitable membership policy for them. Thus,
one might argue that a pohtical community with a long tradition of
institutionalized individualism such as the United States is more justified
in pursuing membership poficies that emphasize individual consent than
is a society with a historically communal structure such as China. And for
communities with a self-understanding as a democracy — that is, with an
entrenched collective commitment to equality of political status — uni¬
versal and voluntaristic criteria of citizenship will bear more normative
weight, relatively speaking, than in other communities. They will be
weightier because they will construe political membership and, more
basically, human potentialities in a way that is more consistent with a
view of fundamental human equality, agency, and dignity than are other,
competing views. It must be noted, however, that such generalizations
hold only so long as societies remain more or less physically, econom¬
ically, and administratively distinct from one another. The characters of
political communities are not static. As economic and governmental
instimtions evolve and political barriers change, so too do the moral
considerations that a membership policy must take into account.^

Five Political Anthropologies

What follows is an explication and critique of the political anthropol¬
ogies embodied in the competing German conceptions of membership,
carried out with reference to what I have called the communal, universal,
and voluntary selves. In criticizing these views, I attempt to point out
some of their empirical shortcomings and logical flaws. My main con¬
cern, however, is with their plausibility as accounts of the structure of
political membership understood as a human good.

84 Ethics of Citizenship
The Closure Position

When politicians claim that the German people is an organic entity
whose surv'ival depends on its purity, daat Germany is for Germans only,
or that persons of foreign origin should be expelled or denied rights,
they are expressing what we have called the closure position. This posi¬
tion has had a striking resurgence in Germany and elsewhere in recent
years. The core of this view, which defines membership in ethnic, tribal,
or racial terms, is based on an extreme version of the communal self. The
form of political organization it recommends may be called the or^fanic
polity, a body defined by the nation-state principle — the rule that politi¬
cal boundaries should correspond to divisions among discrete and cohe¬
sive “peoples” or “nations” that are held to have corporate rights to the
territory they occupy. Political membership is determined by birth, while
changing polities is ruled out in principle.

The closure position is a reflection of hereditary membership practices
that have prevailed throughout much of human history. Accordingly, it
has been expounded by a variety of influential thinkers; In the West,
Richard Hooker, Edward Coke, and Robert Filmer in the British com¬
mon law tradition; Jean Bodin and later Jacques Bossuet in France; and
Johann Herder and a whole succession of theorists of the nation in
Germany provided influential formulations of the essential link between
birth into a historical community' and political membership. Accom¬
panying the modern move from monarchy, there has been some evolu¬
tion in this basic perspective. The idea that states are hierarchical corpo¬
rate entities under divinely ordained so\'ereigns has given way to a view
emphasizing self-determination for and greater egalitarianism within
ethnic groups. Although its theoretical exponents have over the years
become fewer and farther betw'een, the position — primarily embodied
in jus sanguinis citizenship policies — remains entrenched in the practice
of most states.

The prevalence of policies reflecting the principle of closure by no
means establishes the ethical force of this position. Exploration of this
issue begins with the basic normative question for polities: What is the
appropriate unit of self-determination The answer of closure ad\'ocates
is that the relevant unit is the ethnic community. Political control should
be exercised by the members of and on the territory' occupied by a group
defined by blood ties, a collective history, a common language, mutual

Political Anthropologies 85

loyalty, and the other shared characteristics of communal life: culture,
economic activities, religion. The structuring activity of politics is best
engaged in within a naturally emergent group of persons not only com¬
mitted to one another but also related to one another in a profound
manner wholly beyond their individual control. The primary require¬
ment for admission to political membership becomes existence as part of
a preexisting ontological nexus, the people.

This strategy has the pragmatic virtue of rooting political obligation in
the fertile soil of consanguinity. It responds directly to what Roger Scru-
ton has called “the indispensable need for membership” in the “we” of
the nation ( 1992, 94) • Perhaps the greatest merit of this position, how¬
ever, lies in its acknowledgment of the importance of the communal
aspects of human life. Those collective goods that arise only through life
in commimity, it holds, are of paramount importance and hence should
not be subject to external political forces. Self-determination of the eth¬
nic group means valuing traditional structures that provide persons with
a context for social activity, ethical judgments, self-understanding, and
agency in general.

That this is an important goal is demonstrated to some extent by the
historical success of the nation-state principle. With time, however, the
shortcomings of the closure position’s anthropology of community have
become increasingly evident. Problems with this view begin with its
empirical assumption of the cohesiveness and homogeneity of national
groups and are compounded by modern demographic and political real¬
ities. The closure stance does not account for crucial ways in which, as
Michael Ignatieff writes, “modern life has changed the possibilities of
civic solidarity” (1984, 138). In addition, as we will see, in its focus on
communahty, this view ignores other important moral dimensions of
politics.

The notion of the organic nation or “people”® is problematic in both
its historical and ontological dimensions. Nations, it is often assumed in
political discussions, are enduring natural communities united by a com¬
mon language, lifestyle, and set of commitments. Yet as a wealth of
recent scholarship by historians such as Benedict Anderson (1983), Er¬
nest GeUner ( 1983 ) , and Eric Hobsbawm ( 1990) has shown, these com¬
munities have to a large degree been created quite recently, for political
purposes, through the standardization of language and education, the

86 Ethics of Citizenship

consolidation of centralized state power and borders, and the rewriting
of historv'. Often, coercive means have been employed to erase regional
variations and produce cultural homogeneity within broad political
boundaries. Such research has called into question the extent to which
there existed at all “nations before nationalism,” as John Armstrong
( 1982) puts it. It seems, indeed, that in many areas of the world, cul¬
tural groupings exhibited much greater diversity and existed on a much
smaller scale than the model of nation-states implies.

The knowledge that nations bear little resemblance to historical real¬
ity challenges in turn the plausibility of the ontological notion of the
organic nation. It becomes difficult to imagine the nation as the sort of
group-person assumed, for instance, in the Heidelberg Manifesto, when
it is re\'ealed to be not a timeless and cohesive entity but an “imagined
communin'^’ (Anderson 1983) wrested from a background of local di¬
versity. It is true that the concept of group personality given its classic
exposition bv Otto Gierke ( 1957) is independent from the mental states
of individual members. Even so, the image of the German people as a co¬
hesive historical person entitled to self-determination through the legal
trappings of an ethnically exclusive state makes litde sense in light of the
record of migrations, regional variations, and cultural cross-fertilizations
that long kept the population of central Europe in a state of ethnic flux.
The imposed m\ldi of Aty'an supremacy provides sobering testimony
that the illusion of the pure ethnonation may in the end be sustained
onlv through the exercise of raw coercive power.

Doubts about the idea of the nation undermine in turn the force of the
nation-state principle. If the nation is in fact neither a single coherent
cultural entitx^ nor simply the naturally preeminent level at which per¬
sons form and maintain communal ties, then the claim of nations to an
exclusive right of political so\'ereignn' is correspondingh' weakened. Yet
one need not deny the historical reality of nations in order to question
whether nationhood giv'es rise to a right to self-determination. If one
concedes that nations are constructed largeh' through coercive means,
one may well reach the conclusion that as a matter of justice, the harm
done particular subcommunities in the process of incorporation may
nullih' the claim that they belong to a given nation.^

The notion of independent national cultures defined by blood, ten¬
uous to begin with, has been dealt a decisi\'e blow by modern historical

Political Anthropologies 87

developments. The twentieth century has been an era of migration on a
grand scale, of global integration through economic exchange and com¬
munications, of massive shifts in borders and spheres of political influ¬
ence. Historically separate communities have grouped together, inter¬
penetrated one another, and together experienced the homogenizing
effects of intermarriage, technology, and trade. Notions of distinct na¬
tional characteristics remain as stubborn remnants of times past, but
their empirical basis can only shrink as the populations of states become
at once increasingly multiethnic and increasingly stamped by the charac¬
ter of postindustrial society. In this composition there remains little place
for the closure advocate’s image of unique, separate, and pure nations
based on birth.

The closure view of the nation is further confounded by territorial
realities. To begin with, very few borders in the contemporary world
coincide with traditional definitions among ethnic groups. Most reflect
instead the political expedients of colonists or conquerors, and as a result
many divide and group ethnic populations indiscriminately. Very few
states in today’s world might be called ethnically homogeneous in any
strict sense. In addition, territorial sovereignty has in recent years been
impinged upon by international political organizations as well as by
transnational integration. As a result, a world neatly divided up accord¬
ing to the nation-state principle has become, quite simply, impossible.

Germans are no exception to this state of affairs. In a country with a
noncitizen population of seven million, a significant proportion of per¬
manent residents are of non-German ethnic origins. Yet as we have seen,
many of these residents, born and bred in Germany, are much better
integrated into German society, linguistically as well as socially, than
many ethnic Germans who immigrate from other countries — or who
hail from the former German Democratic Republic. Indeed, the same
might be said for some other Europeans not of German descent. At the
same time, entire populations of ethnic Germans living in other coun¬
tries such as Switzerland or, most obviously, Austria challenge the no¬
tion of the German state as the legitimate political expression of the
German nation. Given these conditions, the view that Germany is for all
ethnic Germans, and only for ethnic Germans, appears at best a chimera
and at worst a harmful and potentially dangerous delusion.

A third set of problems for the closure ideal of political membership

88 Ethics of Citizenship

stems from its focus on one normative conception of citizenship at the
expense of all others. Its exclusive reliance on the communal self as
tlie guiding image for political organization opens this perspective to the
critiques of the voluntar)^ and universal models. These critiques gain in
force when one considers the implications a closure-based policy could
have.

The closure view implies a total absence of individual choice or volun¬
tarism in the ascription of membership. One’s political identity is deter¬
mined wholly by the allegedly objective criteria of ethnic or national
membership, through birth. For those outside the group, there is in
principle no way to gain entrance. Even more poignant, for those born
into the group, there is no way out. In Germany, this view has the
consequence that native Germans necessarily remain citizens regardless
of their commitment to or rejection of the aims of the German state.

At the same time, establishing the ethnonational community as the
source of absolute political authority carries with it the rejection of any
universal norms dealing specifically with political membership. The na¬
tion as such is viewed as comprising a natural and self-contained moral
unit. The sovereign judgments of the state as to who belongs to it and to
what degree are not answerable to any external standards of justice; at
the international level, a Hobbesian state of nature prevails. The conse¬
quences of this parochialism are twofold. For citizens, the state’s rejec¬
tion of any legitimate supranational ethical controls results in the likeli¬
hood of nondemocratic forms of government and the absence of human
rights protections for citizens. Citizens of foreign countries, meanwhile,
find themselves with no independent rights and, indeed, no intrinsic
moral status in relation to the state. Such a status may be aw^arded by the
state, but standards protecting foreigners must be voluntarily entered
into by representatives of the closed state — and are imenforceable in
principle. And for a state that would remain ethnically pure, there is little
incentive to enter into such agreements. In Germany, according to this
view, if the sovereign state were forcibly to expel all non-Germans, even
those born and raised there, it would be within its rights unless it had
explicidy committed itself not to do so.

These t\\'o implications of the closure position — the denial of any role
for human volition in determining political status, and the absence of
independently binding extranational considerations of law or justice —

Political Anthropologies 89

demonstrate how the closure position rests on moral grounds that are at
odds with important, widely held values. The picture of the political
nature of persons on which it bases its norms for attributing member¬
ship hence appears skewed; that human beings are, at root, mere compo¬
nents of morally self-sufficient and organic national entities is an im¬
plausible claim in our modern clime. As a simple theory of group rights
writ large, the ideal of closure ignores the interdependence of group
rights and the rights of willing, acting persons. A more nuanced version
of the communal self model, which integrates aspects of the voluntary
self, is incorporated into what we have described as the culture position.
This view draws significantly on the classical model of the polls and, on
the whole, provides a more powerful normative account of political
membership than does the closure position.

The Culture Position

The culture position distinguishes itself from the closure position by em¬
phasizing cultural rather than racial community and by including a role
for individual choice and commitment. In doing so it seeks to combine
the basic anthropological insights of the communal and voluntary selves.
From this perspective, the legitimate unit for political self-determination
is a collectivity of persons united by a common culture and sense of mu¬
tual commitment. The case for self-determination is thus grotmded in
both a claim for the integrity of a given cultural group and a claim
for freedom of association among its members. The right to self-
preservation of the group, coupled with the belief that cultural homoge¬
neity is a precondition for a viable democracy, gives rise to the claim that
the community has the exclusive right to limit membership to those it
deems culturally assimilated and suitably committed to it. This means
that although political membership is not closed, to gain admission
requires considerable effort and remains contingent on the approval of
the community.

In its linking of community and self-determination, this view evokes
the normative contours of Aristotle’s pohtical account of the communal
self. It is hence not without reason that the comparison with the classical
Athenian pohs is often drawn in German debates. The culture position
endorses Aristotle’s central claim that the human is a zoon politikon that
truly flourishes only in a well-ordered political community exhibiting a

90 Ethics of Citizenship

basic consensus about the good. A flourishing community requires the
participation of equals in making decisions and in the administration of
government (1941, 1221). Citizenship is a highly valued privilege de¬
served only by those who belong to the community, nurture its values,
and are prepared to dev ote themselves to its maintenance. This notion of
the political importance of culture, often associated with Edmund Burke
(1987), has been expounded at various times and in varying degrees by a
line of republican thinkers stretching from Cicero to John Adams to
Hannah Arendt.

That current German membership policies have largely been shaped
by the culture perspective is illustrated by how much they have in com¬
mon with citizenship practices in ancient Athens. In the most demo¬
cratic of Greek city-states, citizen status could be claimed only by native
males who could prov'e that they were at least eighteen years of age and
had been freely born to tw^o lawfully married Athenian parents; native
women and children possessed quasi-citizen status. Only in excep¬
tional cases was citizenship extended to foreigners. The status of citizen
brought with it a number of privileges and duties, including participa¬
tion in religious ceremonies, v'oting and serving in office, obedience to
the laws of the polls, the provision of military^ service, and the payment of
taxes. Citizens were sharply distinguished from slaves, foreigners, and
metics — resident aliens who shared the duties of military service, taxes,
and participation in public liturgies yet were denied a political role and
other important rights.

Guestvv'orkers in European countries hav'e often been compared to
metics, yet on this point German policy' departs somewhat from the
Athenian model. Metics, unlike citizens, could lawfully be tortured,
which illustrates that they were viewed as fundamentally less valuable
than nativ'e Athenians. In postwar Germany, however, such a far-
reaching double standard is hardly sustainable, for obvious reasons. The
idea of a permanent subordinate status for foreign residents has come to
be viewed as incompatible with the Eederal Republic’s commitment to
democratic self-determination. Resident aliens are consequently to be
given a choice: they may either depart or assimilate themselv'es with tlie
goal of naturalization. A coroUarv' of this stance, nonetheless, is that as
long as thev refuse the choice oflFered them, their civil rights and privi¬
leges may justifiably be limited by the communin' whose guests they are.

Political Anthropologies 91

There are several clear merits to the culture position. Central among
these is its acknowledgment of the moral importance of the communal
nature of humans. Human beings are after all, as the liberal theorist Joel
Feinberg aUows, products of the social, political, and linguistic commu¬
nities in which they are raised:

As soon as they think of themselves at all, they think of their identity
as determined by their membership and group-assigned roles. They
may form purposes of their own, but even when tliese are noncon¬
formist or rebellious, they can be understood only against a back¬
ground of community practice and tradition. Their original pur¬
poses, values, and conceptions, all socially assigned, play a decisive
role even when, as budding adults, they choose to alter or transform
them. A complex modern community will even provide them with
antitraditionalist traditions to identify with and be comforted by.
(1988, 39)

As the culture position recognizes, cultural membership is of extraordi¬
nary importance for human identity, and indeed, human agency. This
observation provides the basis for the claim that cultural groups deserve
the right to be politically self-regulating. By framing their argument in
terms of the right that members of a common culture have to shape their
political life, culture theorists avoid many of the difficulties that the
hereditarily defined, organic conception of the nation advanced by clo¬
sure proponents demonstrates.

Another strength of the culturalist argument is that it supports a high
level of political commitment by focusing cultural attachments on the
political sphere. Even such a champion of universal rights as Rousseau
was forced to acknowledge the psychological importance of communal
solidarity in the business of running a state; for this reason, his concep¬
tion of humanite remained bounded, for political purposes, by the bor¬
ders of the republic (Vernon 1986, 39-40). Identifying the political
community with a particular cultural group improves the chances of
generating a strong sense of cohesion and loyalty to the state. It makes
possible the cultivation of what Alasdair MacIntyre calls the virtue of
patriotism (1984, 254).

At the same time, this membership orientation adopts a broader nor¬
mative base than does the closure approach by including a measure of

92 Ethics of Citizenship

openness to outsiders. It is possible for persons demonstrating sufficient
dedication and cultural assimilation to become new members, which
represents a nod to the importance of the voluntary self in defining
political communities. The notion that consent and contract are impor¬
tant components in political organization thus receives some accom¬
modation. The difficulty of becoming a member, moreover, serves to
affirm the value of political participation and citizenship in general.
When citizenship is simply ascribed, by birth or by right, it may well
be taken for granted. When, on the other hand, citizenship is seen as
an identity earned through commitment and effort, it may be expected
that its responsibilities and duties will be highly prized and discharged
accordingly.

Although it escapes some of the difficulties to which the closure view
succumbs, the culture argument is hardl}' immune to criticism. To begin
with, some of its empirical suppositions are open to question. For exam¬
ple, one of its crucial assumptions — that cultural homogeneity is re¬
quired for the success of democratic government— has been hotly de¬
bated for centuries and is by no means resolved. Even if evidence could
be found to vindicate this premise, the tangled question of what con¬
stitutes a sufficient degree of assimilation would remain open.

This problem suggests another in turn: Do cultures actually exist in
the cohesive way posited by this view!* In many respects this question
does not differ from the problem of nationhood discussed in connection
with the closure position; thus the notion of a discrete culture must cope
with the attendant problems of local diversity, migration, and suppres¬
sion of di\'ersity^ Assuming for the sake of argument that one can speak
intelligibly of a unified German culture, the question remains as to
whether this is an appropriate unit for political self-determination on
the logic of the culture position, or whether it is simply too large and
unwieldy.

This complication is perhaps best illustrated with reference to the
form of organization on which the culture position is based: the polls. As
Robert Dahl remarks, Greek democracies were not Greek, but rather
Athenian, Spartan, Corinthian, and so forth: Although ancient Greeks
saw themselves as members of the Hellenic culture, their political in¬
stitutions required an intimacy' and proximity naturally available only at
the level of the dw (1989, 3). Such theorists as Plato and Aristode

Political Anthropologies 93

perceived that an active democratic culture relied on a concrete sense
of participation in shaping a shared life — a sense that was diluted, the
more political boundaries were extended and populations increased (see
Wolin 1961, 69-71)- With the rise of the Macedonian empire, as with
the imperial expansion of the Roman republic, the question arose. At
what point does the communal form of democracy lose its character and,
with it, its normative cogency? Conversely, at what point of growth does
the state lose its significance for the moral life of the citizen? It seems,
finally, that the sort of democratic citizenship found in the polis and
in classical repubUcs depended on a sort of community characterized, if
not by face-to-face interaction, at least by a sense of immediate involve¬
ment with one’s fellow citizens. And this is a context that no amount of
economic integration, common education, and telecommunications is
likely to reproduce in today’s large and complex nation-states. The mod¬
ern German social setting, it seems, simply cannot sustain the sort of
citizenship envisioned in the culture model.

Apart from these empirical drawbacks, the culture position also ex¬
hibits shortcomings of a more normative nature. One has to do with the
territorial aspect of political organization. Where a single coherent cul¬
ture exclusively occupies a clearly defined region, the principle of control
of membership by the group according to cultural criteria might well
carry decisive weight regarding admissions of new residents. It is a dif¬
ferent matter, however, when a sizable number of nonmembers already
reside in the territory. The situation might then arise — and there is no
reason to think it would not — in which people not belonging to a domi¬
nant culture are faced with the choice of leaving or changing their cul¬
tural identity in order to gain political rights. This, it can be argued,
would place an undue burden on them tantamount to a form of harm.
Yet in such a case, these residents would have no basis for demonstrating
that they were being wronged. For the logic of the communal self em¬
bedded in the culture perspective recognizes no moral authority outside
the community, and the logic of the voluntary self could be seen as
satisfied by the choice offered the residents.

This possibility points to a second shortcoming this view shares with
the closure position — namely, the failure to accommodate consider¬
ations of justice or human rights bearing on membership. For German
representatives of the culture position, the shape of the German polity is

94 Ethics of Citizenship

a matter that arises prior to any considerations of justice or entitlement;
as a result, the idea diat a non-German resident might have a universally
grounded human right to political membership simply does not make
sense to themd^ Their view does not recognize the political relevance of
what we have called the universal self, the self possessed of intrinsic
political rights grounded not in particular communities but in member¬
ship in the generic community of humankind.** As in the closed society,
foreigners have an inferior moral status in principle. Whether or not they
might be eligible for membership and if so under what conditions is
determined wholly by the political community. The noncitizen’s funda¬
mental lack of standing in regard to the distribution of membership
under the culture position is a shortcoming that is to an extent remedied
in the choice position.

The Choice Position

The choice position takes as its highest \'alue the autonomy of the indi¬
vidual political actor. It holds that each person should be able to choose
not only the political organization in which he or she is a member but
also the extent of membership and participation. The resident alien,
therefore, should have a full range of options, including remaining a
political outsider, becoming a naturalized citizen, or adopting some in¬
termediate status including, perhaps, limited voting rights. In this strat-
eg}^ a positive value is placed on citizenship, in that successive levels of
political inclusion are accompanied by increasing costs — in terms, for
example, of length of residence or military' service — and full inclusion
requires maximal involvement on the part of the prospective member.
Uniformity of political status within the state, on the other hand, is
neither required nor especially valued. Instead, a layered polity is ac¬
cepted, and the lack of political representation for some is justified on the
grounds of their personal decision not to “purchase” a fuller form of
membership.

This position is perhaps as thoroughgoing an embodiment of the
anthropological image of the voluntary' self as current political struc¬
tures permit. It conceives of government as subordinate to, and firmly
grounded in, the interests of the individual. It is, in short, a liberal
individualist strategy, and although it draws on a tradition of consent
reaching back to the Sophists, it is essentially a modern outlook ex-

Political Anthropologies 95

pressed initially and in varying degrees in contractarian thinkers such as
Locke (1967), Rousseau (1947), and Jefferson (see Whelan 1981, 649-
50 ) . According to this view, within the constraints of social utility the
unit of self-determination ought to be defined in terms of individual
choice and commitment on the principle of freedom of association. Thus
the political community should coincide with that group of persons that
elects to administer its affairs collectively within a given social sphere.
This group may vary according to the scope of the issues concerned, and
a local polity might therefore include persons who are not members of
the national polity, or vice versa. The key claim is that political member¬
ship should conform to rather than determine the conjunctions of indi¬
vidual interests that occur at different levels of social organization.

This tolerance of organizational diversity is a major strength of the
choice stance, for in much of the world, and especially in Western Eu¬
rope, migration and international integration have produced a situation
conducive to partial and multiple memberships. An ethnic Algerian re¬
siding in France may well have a significant stake in the governance of
several communities to which he or she has ties, including Algeria, his or
her town, France, and Europe. The choice perspective offers the possibil¬
ity of giving each of these attachments some political substance in com¬
plementary fashion: some political rights may be ensured by the country
of residence, others by the country of origin, still others by international
organizations.^^ In fact, current practices regarding citizenship and per¬
manent residence in Europe and North America reflect the choice per¬
spective to a great extent. The guiding principle of this position — a
respect for individual autonomy — has been manifested most notably in
the general reluctance of governments to impose uniformity of citizen¬
ship on settled foreign residents who do not pursue naturalization.

Respect for autonomy is the principle that produces most of the nor¬
mative force of the choice stance. At its core this position conjoins the
fundamental conviction that human beings deserve control over their
individual lives and projects, with the recognition that one’s political
membership represents a crucial aspect of this control. From the point of
view of isolated and mobile individuals — or of individuals within a con¬
stantly fluctuating world polity — the value of this position is clear.

The choice position enjoys moral plausibility not only from the per¬
spective of the atomistic individual but also from its reliance on the

96 Ethics of Citizenship

principle of freedom of association that lies at the core of modern-
day democratic politics. The idea that political communities should be
grounded in the consent of the individuals they comprise is as old and
distinguished as the contractarian tradition. So long as a set of individ¬
uals clearly wishes to establish and maintain a political organization,
there seems to be no prima facie reason to deny them. Consent, as many
have argued, provides a strong ground for political obligation. As far as
membership policy goes, there is clearly something to be said for allow¬
ing the desires of the collectivity of members pride of place, as Michael
Walzer emphasizes in his analogy between countries and clubs.

The choice system, finally, also incorporates an important element of
fairness. The voluntary model on which it is based is committed to
defining eligibility for political membership primarily in performative
terms, that is, in terms of what someone — anyone — might do in order to
qualify for membership. Political membership is open to one’s efforts to
change it, and generally one is free to earn political status by fulfilling
requirements established by the community in question. In contrast, the
communal and universal models make one’s eligibility dependent upon
involuntary' criteria: respectively, who one is by birth and in what situation
one finds oneself -is a human being.

Along with these merits, there are some serious disadvantages to the
view that political identity should be established wholly on the basis of
individual choice. We may begin once more with some relatively empiri¬
cal considerations. First, there is no reason to assume that a choice prin¬
ciple of political membership is ethically appropriate simply because it
reflects many current membership practices. One must further inquire,
for example, whether stable political structures and effective governance
are possible on the terms of the choice principle. As migration increases,
the tendenev' of choice-based political membership moves away from the
rigid structure of the nation-state tow'ard more complex and interwoven
political forms. One worry' is that this movement may lead to a radical
undermining of political cohesion and stability. If all within a territory'
are free to reassign their loyalties and commitments as and when they see
fit, those institutions of the state that rely on patriotic feeling and civic
commirnient can only be undermined. In the longer term, modeling
political membership according to individual preferences wUl seem dan¬
gerous to anyone who holds, in the tradition of Plato, Aristotle, Saint-

Political Anthropologies 97

Simon, and Hegel, that human well-being depends on the maintenance
of concrete political structures.

These pragmatic issues quickly give way to difficulties of a more nor¬
mative nature. For example, the notions of choice and the will on which
this view depends become problematic once subjected to close examina¬
tion. For a start, choice does not occur within a vacuum. Although the
choice position seems to assume that inchviduals exist in some way prior
to the political organizations they form, in fact the opposite is true. Until
they reach maturity, people are hardly capable of determining their polit¬
ical membership; they simply belong willy-nilly to the community in
which they are raised. At what age and on what basis may persons be
expected to make decisions about their political membership The prob¬
lem is partly definitional in nature. Should choice of membership take
the form of an active selection among possible communities or that of a
response to an offer of membership .> Or might it be inferred, in Lockean
fashion, from one’s tacit consent? Beyond this question, there are deeper
problems with the way in which the will and choice are assumed to
generate moral legitimacy for modern-day political systems. These prob¬
lems arise from the tension between the will understood as a psychologi¬
cal function — a broad notion that encompasses even such simple physi¬
cal motions as breathing — and the will understood to be an active,
focused moral faculty capable of producing obligations (see Riley 1982,
especially chap. 7)?^

The problem with the idea of a choice of membership becomes clearer
when we consider the case of the many migrant workers in Germany
who, laboring under the “illusion of return” nurtured by host and send¬
ing governments alike, remain political outsiders all their lives because
they feel they will wish to return one day to their country of origin.
Should it be assumed by default that such workers do not choose mem¬
bership because they do not demand it? On the evidence, it is highly
probable that such workers would choose German membership if their
choice were structured differently, for example as an option to turn
down citizenship granted by statute. In any event, decisions regarding
membership are in practice always severely constrained by social ties and
obligations experienced as prior to choice. In phenomenological terms,
choosing one’s political membership is somewhat akin to selecting one’s
ethnic identity or religion. It is far from clear that such a choice is willed

98 Ethics of Citizenship

in a manner strong enough to ground either political obligations or dieir
lack, hence the difficult)' in accepting die proposition that the continued
existence of foreign residents in a disenfranchised status may be taken as
evidence that they choose it. Socrates, a “guestworker” of sorts himself,
may have grounded his political obligations in his submission to the laws
of the polls, but in our modern times this justification no longer seems
compelling.

The premium placed b)’ the choice position on maximizing personal
autonomy may also be expected to have some undesirable moral effects.
The choice orientation emphasizes autonomy at the expense of political
obligation. Citizenship comes to be experienced less as a set of objective
duties and privileges than as a range of insurance policies that may be
mixed and matched as seen fit. As a result, the option of being apolitical
gains in acceptabilit)’, ei en in respectabilit)'. The choice to exempt one¬
self from some of the basic duties and prix ileges of the societ)' becomes a
viable possibilitx'. The effect is a depreciation not just of citizenship but
of politics in general, as many have warned (see, e.g., Heater 1990;
Oldfield 1990). And there is a further implication. WTien isolated resi¬
dents freely choose not to belong to the poliu' that shapes the life of their
communin', this choice might at first be defended on an indix'idual basis
as an expression of personal autonomy. On a larger scale, however, when
a svstem of subordinate political membership becomes entrenched,
those in the polin' are placed in the situation of ruling over nonmembers
who remain subject to the law s the polin' makes, and the policies it
chooses. The socien' as a w'hole becomes implicated as a state ruled by, in
Walzer’s w'ords, a “band of citizen-n'rants” ( 1983, 58), w'hose claim to
govern legitimately and democratically is no better founded than the
claim that the acquiescence of slaves justifies slaven'.

This difficuln' is generated in part by the territorial dimension of
political organization. Like the culture position, the choice position
must cope vi'ith the o\'erwhelming probabilin' that those willing to form
an exclusii’e political association w'ill not occupy a territon,' devoid of
other persons. But the difficuln’ also has to do w ith a problem inherent
in the principle of freedom of association undergirding the choice per¬
spective. The essence of this notion is that political groups should be self¬
defining: only collections of like-minded indinduals have the authorin'
to constitute groups bearing a right to self-determination (see Beitz

Political Anthropologies 99

1979; Philpott 1995) • But what happens when there is disagreement on
the shape of the relevant groups? It may be true, as Charles Beitz argues,
that an encompassing group does not have the right to restrain a separat¬
ist subgroup that seeks autonomy; but this does not resolve the conflict
that arises when a large group seeks to exclude a smaller group that
wishes to belong to it. There is no reason to think that agreement could
be obtained among aU political actors about their respective member¬
ships without some such problems of exclusion arising. Yet when the
operative principle of organization is free association, that is, when no
appeals can be made to either community standards or standards of
justice transcending individual choice, then there are no resources for
resolving such an issue other than force.^^

This problem points to a final pair of hmitations exhibited by the
choice perspective, which have to do with its narrow emphasis on the
political anthropology^ of the autonomous self. On the one hand, this
focus exempts membership policy from important considerations of
community. The values sought in the culture and closure positions of
ethnic and cultural sohdarity, loyalty and obhgation to country^ and
maintenance of a coherent moral communiw are all subordinated or
dropped in favor of individual autonomy. The result is an impoverished
and perhaps dangerously fractured political culture. On the other hand,
the emphasis on choice also comes at the expense of broader consider¬
ations of justice. A rough structural fairness is indeed evidenced in the
linking of different political statuses with different levels of personal
commitment, but there remains no authoritative standard to appeal to
when specific membership criteria set by a pohtical group are seen as
unreasonable, unfair, or inegalitarian. It becomes impossible to argue
from human rights premises except in the sphere deahng directly with
individual autonomy. It is this last problem — the problem of how to
admit concerns of justice and egahtarianism in membership policy^— that
the coexistence position addresses.

The Coexistence Position

The coexistence position, like the culture position, is a pohtical-anthro-
pological hybrid. Both value the political commitment of the voluntary
self, but where the theorist of culture additionally' extols the particularis¬
tic identity of the communal self, the theorist of coexistence emphasizes

loo Ethics of Citizenship

the significance of the universal self’s integration and participation in
society'. Eligibility for full political membership is determined not by
one’s membership in a particular cultural or ethnic group, but by the role
one occupies in a given territorial society; All those living, working, and
participating over time in the life of a communiw are held to have a
warrant to being included, subject to consent. From this perspective, full
citizenship rights should accompany birth into the society — birth, that
is, to resident parents. In addition, these rights should be offered to
all those with origins elsew'here who have resided in the society long
enough to become integrated into its social structure and patterns of
daily life, contingent only upon acceptance of the constitutional order of
the societx’. The universalist aspect of this orientation is reflected in its
subscription to the idea that, since ail persons are in essence equal, all
those subject to the power of a got^ernment possess the same right to
representation. Its voluntaristic aspect is captured in the notion that
one’s existential contribution to the overall project of life in society mor¬
ally grounds a say in collective decision making.

The appropriate unit for self-determination, according to the co¬
existence position, a territorial community exhibiting a structurally co¬
hesive character. Political membership, in short, should be congruent
with economic and social membership — memberships determined pri¬
marily through long-term residence. The reasoning behind this \few is
grounded in that aspect of states which sets them apart from other sorts
of groups and associations, namelv, the claim to exclusive dominion over
a given territor\'. The central idea is, simply, that territorial sovereignty
should be exercised not by an ethnic nation or cultural group, but by the
coUectivitt' of those living under the laws of a spatially defined society. Of
course, territorial “societies” are shaped through a complex dialectic
including political, economic, and social factors, and it is dangerous to
\'iew them as “natural” groupings. Gansequentlv, the coexistence \ie\\'
sees territorial societies as providing a legitimate basis for political or¬
ganization onlv within certain constraints of justice regarding the cir¬
cumstances in which borders are established in the first place. This
position, it is w'orth pointing out, does not rule out the existence of
nation-states, but in cases of ethnically or culturally di\’erse regions, it
establishes a principle of the priority of residence over nationality in
determining citizenship.

Political Anthropologies i o i

In holding that citizenship rights remain subject to tlie assent of long¬
term residents, the coexistence position draws in part on tlie legacy of
theorists of consent. However, its core claim — that one’s place and role
in society ground an entitlement to the status of citizen — is founded on
the universalist notion of justice embodied in the tradition of natural
law, natural rights, and what are now known as human rights. This line
of thought, the logic of the universal self, has its roots in the cosmopoli¬
tanism of the Stoics and ancient Roman law; it was also deeply influ¬
enced by the spiritual egalitarianism of the nascent Christian church. In
the early modern period it was pursued most notably in the work of the
natural law jurists. At the heart of this school was the attempt to establish
the notion of jus gentium, a system of law and morality binding for aU
states.^'^ The notion of natural law played a large if ambiguous role in
Rousseau’s thought (see Shklar 1969), and in the French and American
Revolutions the notion of natural rights helped shaped the new states
and their jus soli citizenship practices.^® Eventually, traditional notions
of natural law were largely superseded by the Kantian project of ground¬
ing rules for the state in a rationally ascertainable universal law.^^ With or
without a theoretical grounding, the notion of the fundamental equality
of humans — or, more often, of the fundamental injustice of certain in¬
equalities among humans — has continued to play a major role in the
evolution of citizenship. The constant thread uniting these develop¬
ments has been the conviction that the definition of citizenship should
be subject to standards that reach beyond simple consent or communal
membership — standards that have to do with membership in the com¬
munity of all humans.

The coexistence position combines the anthropological images of the
universal and autonomous selves by defining eli£iibiUty for citizenship in
terms of impartial criteria while leaving the assumption of citizenship
status subject to a right of refusal for those already holding other citizen¬
ships. There are three important normative implications that flow from
this stance. The first is the recognition of socioeconomic participation as
a primary political value. It is the performance of “socially necessary
work” (Walzer 1983, 60), more than one’s personal characteristics, that
grounds one’s claim fuUy to belong. The second is the lack of a require¬
ment for an exclusive citizenship. Where integration, and not first and
foremost national identity, provides the basis for political membership.

1 02 Ethics of Citizenship

there is no reason to make inclusion contingent upon the relinquishment
of attachments to national groups abroad, even if these links include a
foreign citizenship.^" The third is the need for a viable constitutional
system to support the tolerance of ethnic diversity. The cement of the
coexistence polity must be a common commitment to the rule of impar¬
tial law — a “constitutional patriotism” — rather than ethnic solidarity
(Habermas 1994, i34).

A great merit of the coexistence approach is that it provides a model
with a strong potential for implementing the equality of citizenship in a
world of large-scale industrial societies and ethnic diversity. Where the
sort of inclusion envisioned by the culture and closure models would
require substantial, perhaps even impossible, changes in the ethnic or
cultural composition of present states in order to achieve equality of
political membership, the coexistence model is constructed to apply to
more or less current conditions. In addition, where these competing
models ideally require a relatively small scale of political organization in
order to buttress the thick political attachments of traditional citizen¬
ship, the coexistence model, with its emphasis on individual protections
and impartial criteria, is designed to cope with the size and impersonality
of modern states.

A territorial basis for defining political membership recommends itself
on two additional counts. First, in practical terms, a territorial commu¬
nity is considerably easier to demarcate than a racial, ethnic, or national
community.^® Second, the coexistence model avoids the problem the
territorial aspect of states presents other models since it leaves no basis
for fears that large populations within the state will fail to qualify for
political membership and remain permanently disenfranchised. We live
in political communities, this view recognizes, that are closer in scope
and structure to the Roman Empire than to the Greek polis; accordingly,
we require something more akin to the universal Roman citizenship that
so impressed Augustine than to Aristotle’s ideal of Athenian citizenship.

The central \'irtue of Roman citizenship after the Constitutio Antoni-
niana was its guarantee of equality for all within a given territory under a
strong system of law (see Sherwin-White i973, especially 287, 461-68;
cf Balsdon 1979). This feature is shared by citizenship on the coexis¬
tence model. Where citizenship is based on integration understood in
terms of residence and socioeconomic participation, no separate set of

Political Anthropologies 103

laws can exist for long-term residents who are citizens and long-term
residents who are not. Subordinate political membership is not allowed
as a matter of structure, even though individuals possessing political
membership elsewhere may choose not to accept the formal status of
citizenship or not to exercise their political rights. In today’s world many
find normatively appealing a system in which membership is based not
simply on the vagaries of one’s heredity but also on one’s situation within
and contributions to the political community. There is a similar appeal in
protections that are founded not in the wiU of a particular group but in
laws thought to embody norms applying to all humans regardless of
particular attachments.

For many communitarian thinkers, however, the coexistence model
represents a fatal corruption of the very notion of citizenship. There are
two points to this objection. First, defining citizenship in exclusively
political and socioeconomic terms means detaching it from those ethnic
and national ties that have historically given it its affective power. This
spht, some predict, is likely to lead to a decline in loyalty and commit¬
ment to one’s country of citizenship, a trend that cannot bode well for
questions of, for example, national defense. In addition, where citizen¬
ship can be obtained simply as a matter of impersonal right, as opposed
to communal identity or individual election, it may be expected that a
climate of civic-spiritedness is not as likely to prevail. A state whose
citizens lack a basic cultural homogeneity, this criticism adds, will be
wracked by ethnic antagonisms that will exert a constant strain on com¬
mon political institutions.

The second communitarian objection to the argument for coexistence
is that it disregards the moral significance of community. By adopting
purely socioeconomic criteria as the basis of political membership, it
ignores the fact that human flourishing requires a culturally and lin¬
guistically coherent environment as its context. Instead, the coexistence
position contributes to the breakdown of moral community by denying
it the political incorporation it requires to survive. In short, it denies the
moral claim of the communal self.

Even if one accepts the basic logic of the coexistence approach, there
remain some potentially large problems concerning its applicability. One
such problem is how universal requirements regarding citizenship might
be agreed upon, a quandary, of course, faced by human rights generally.

1 04 Ethics of Citizenship

Various arguments have been advanced as to why political represen¬
tation is a fundamental human right (e.g., Shue 1980; Finnis 1980;
Gewirth 1982). But agreement has proved elusive as to which argument
is best or most true, a state of affairs that could have important implica¬
tions for the criteria for citizenship recognized in actual policies. This
issue is likely to be particularly important in connection with restrictions
on political rights. Is it unjust to deprive persons of citizenship if they are
acknowledged to represent a threat to collective security? If they are
convicted felons? If they refuse to provide military service? How long
must one live in a country' before he or she becomes “integrated”? The
basis for deciding such questions will always remain open to debate and
disagreement. Yet a primary tenet of the coexistence position is that it is
unjust for membership criteria to be subject simply to the preferences of
a majority' of those who are already members. Some overarching stan¬
dard is necessary' to which those who are excluded may appeal; but at
present international norms that might fulfill this role in regard to politi¬
cal membership have not yet emerged with any definition.

A second problem of application involves the nature of “societies”
in general and of contemporary' societies in particular. The question
of what defines a society' has long been a central concern of sociol¬
ogy', and stipulating a territorial component by no means resolves this
problem. Do actual territorial entities truly exhibit the moral charac¬
teristics required by the coexistence model — relative self-sufficiency,
self-containedness, sovereignty' over their own affairs? It is, in fact, the
divisions among societies — or the lack thereof — that present the great¬
est difficulties for the normative logic of coexistence. Why should politi¬
cal membership not be drawn on the scale of “industrial society” as a
whole, or on the scale of the global economy? It is difficult to see how the
coexistence position can maintain a basis for separate citizenships. In a
world in which political divisions have to do less and less with economic
or social divisions, the adequacy of this view is increasingly challenged.
The final position, that of cosmopolitanism, gains its focus in response
to this problem.

The Cosmopolitan Position

The cosmopolitan position is in important respects tlie antithesis of the
closure position; together, the two represent the extremes in modern

Political Anthropologies 105

debates on political membership. The fundamental cosmopolitan claim
is that political participation is a human right of the first order. Simply
by virtue of being human, and irrespective of their contribution to so¬
ciety, all persons have a right to an effective voice in any decisions that
significandy concern them. For this reason, questions of political mem¬
bership should be determined according to the scope of the effects of
political decisions. It is immediately apparent that in its disregard for
ethnicity, affective ties, and long-term individual involvement or com¬
mitment, this logic leads away from traditional conceptions of citizen¬
ship and political closure. This tendency is borne out in the sorts of
policy suggestions that arise out of the cosmopolitan stance. In Ger¬
many, human rights advocates have argued for full political rights not
only for long-term residents such as guestworkers but also for migrants
with as little as six months of residence. A further extension of this
argument would, in response to increasing global interdependence, nec¬
essarily make the right to political participation transnational.^^ Ul¬
timately, its logic leads to the establishment of a system of world citi¬
zenship (see especially Heater 1990). Cosmopolitanism represents, in
short, the eclipse of national citizenship.

The cosmopolitan view that political inclusion is a human right has
been developed in a tradition dating from the Stoic philosophers. In the
modern era, the idea played an important, if not finally decisive, role in
Rousseau’s thought; for Kant, it was an even more central notion. And
although Marx saw citizenship itself as a corrupt bourgeois institution,
his alternative vision of the communist society was similarly an expres¬
sion of the cosmopolitan ideal. An innate universal right to political
representation was furthermore assumed by many important republican
thinkers and early theorists of representative government. Yet it was only
in response to the vast sociopolitical changes of the twentieth century
that much attention came to be focused on the inherent conflict between
this right and the existence of separate sovereign states. The progressive
extensions of suffrage in many countries over the last century and more
recent steps toward international organization have arguably made cos¬
mopolitanism a more viable idea than ever before, even though it re¬
mains unlikely that a right to political membership will gain interna¬
tional support so long as human rights mechanisms depend in practice
on individual state interests.

io6 Ethics of Citizenship

Se\'eral points arc worth making about the normative character of the
cosmopolitan position. The claim grounding political participation in a
human right to self-determination is, first of all, essentially an individu¬
alistic, as opposed to a social, conception. At the same time, it is essen¬
tially contextual, in the sense that it depends on a structure of actions
that affects the libert\' or well-being of the person concerned. The duty
correlative to the right to participate is — in addition to the duty to
participate — the duty of the individual to abide by political decisions.
Since the arena in which this right is to be exercised is a function of the
position of the individual in various different contexts, its social or politi¬
cal referent need not remain constant. This means, however, that in
principle, the concept of a system of fixed and mutually exclusive politi¬
cal communities is undermined; indeed, the notion of having a determi¬
nate particular political membership is challenged (see Bader 1995).
Indeed, cosmopolitanism militates against the intrinsically territorial
concept of sovereignty. It challenges not only the right of any particular
political group to exclusive control over a given territory but also the
very' legitimacy of political borders (see Bauer 1975; Carens 1987) . Con-
sequendy, cosmopolitan theorists are highly skeptical of the claim that
one has special moral obligations toward one’s compatriots that do not
exist toward noncitizens (see Shue 1980, 134-49; Goodin 1988). A
consistent prosecution of this logic of individual human rights leads
finally to a denial of the moral force of any distinction between citizens
and (noncitizen) human beings — and consequently, of the validity of
any constitution that sets up special political privileges for its citizens
while denying them to others.

The normative strength of this approach lies in its principled pursuit
of a radically democratic view of politics. Through its rigorous uphold¬
ing of a human rights standard it challenges the monopoly of power
assumed bv states and strongly asserts the inherent moral value of each
individual. At the same time, it seeks a thoroughgoing obsen'ance of the
principle of the fundamental equality of all human beings. In doing so
it seeks to fix a ground for political and other rights that is arguably
stronger and more concrete than a notion of citizenship founded on
community or contract. As Alexander Bickel writes, “Emphasis on cit¬
izenship as the tie that binds the individual to go\’ernment and as the
source of his rights . . . bodes ill for the endurance of free, flexible.

Political Anthropologies 107

responsive, and stable institutions and of a balance between order and
liberty” (1975, 53; emphasis added). The objective of a world polity
embraced by the cosmopolitan position represents, finally, a far-sighted
goal that is perhaps uniquely appropriate to an increasingly integrated
world in which common concerns — nuclear arms control, overpopula¬
tion, the environment — are likely only to grow in scope.

But there are also drawbacks to this position. The most obvious prob¬
lem with a cosmopolitan approach to political membership is the ques¬
tion of its practicability. Certainly a long-term trend is observable in
many countries toward less exclusive membership policies. Yet this de¬
velopment has for the most part been within individual sovereign states;
only in the European Union has even slight progress been made toward
supranational membership, and this may indeed prove to be simply a
new level of national membership. A global political entity that would
standardize the individual right to political representation continues to
seem unattainable, and there are many who doubt that an organization
possessing such massive centralized power would be desirable even in
principle.

But this matter aside, let us consider the most immediate and realiz¬
able prescriptions of the cosmopolitan position. It supports a political
inclusiveness at the national level that would embrace anyone likely to be
subject to state policies for any substantial length of time — a category
excluding tourists but including recent migrants and all official residents.
In practical terms, it may well be asked whether such a policy might have
unacceptable effects for the state. The political inclusion of new and
socially unintegrated immigrants might easily lead to social and political
instability. New immigrants might also be expected not to exhibit the
loyalty to the political community and the attachment to its laws that are
bred by socialization in a society and are necessary to its security.

At a more theoretical level, a difficulty arises with the conception of
individual rights tliat the cosmopolitan position seems to presuppose.
The moral right to political inclusion in the state is often invoked as if it
were an innate, natural quality of individuals possessed independent of
their social setting. This abstract view is, however, incoherent; for a right
is, analytically speaking, a relational concept that makes sense only given
the existence of some moral-political context in which rights may be
held.^^ If we cannot speak of rights as simply innate, then we must

loS Ethics of Citizenship

inquire. In which context might a human right to political membership
obtain? In practice, many human rights, such as the right to welfare or to
personal securin’, tind tlieir expression within the setting of indmdual
states and political cultures. But the same cannot be said of a right to
state membership. In large part this is because by its ver\’ nature this
right challenges the notion of state so\ ereignn'. At the same time, the
particularist framework of nation-states simph' does not proxide an ade¬
quate arena for evaluating rights-claims regarding political inclusion.
The putatix e member — as a rule, a citizen of anotlier state — is not vet a
part of the communin’ to xx hose norms such an ex aluation xx ould hax e to
refer. As a consequence, xx e must recognize that if it is to be a x iable
concept, the right to political membership must assume a transnational,
if not global, context marked bv shared moral understandings and politi¬
cal institutions. The extent to xx hich such a context already exists is, of
course, debatable.-’’’

This criticism leads to another of a more explicitly anthropological
nature. Somehoxx’ it seems unfair to include someone in political deci¬
sions xx’ho has not contributed to the life of the communitx’, xx ho has not
been attached to it and experienced its ups and doxx ns, xx ho has not
demonstrated a commitment to the societx^'s xx ell-being. I suggest this
appearance of unfairness derix es from the x alue xx e place on the notion
of the x’oluntan’ self and lies in the belief that political membership
should at least be chosen, and in certain senses exen earned. From this
perspec-tix e, the political communin’ rests on a metaphorical contract, a
moral understanding dex eloped ox er time and honed through the prac¬
tice of self-determination. Nexx comers must become parties to this con¬
tract in order to rake up political rights; yet this xx ould seem to inx olx e
not only an act of commitment on the part of prospectix e members but
also some sort of acceptance on the part of the communin’. Political
membership, according to this common intuition, cannot be established
simply through objectix e criteria such as a conception of human rights.
More is needed to establish a sense of shared obligations among the
members of the p>olitical unit.

This objection is related to another anthropological criticism lex eled
from the perspectix e of the communal self. WTiere the constitution of
political communities is detemiined through stricTly unix ersal and im¬
partial criteria, the thick basis of politics in historical con-miunities is

Political Anthropologies 109

seriously undermined, with the consequences not only that social soU-
darity is eroded but also that community values are harmed and individ¬
uals morally impoverished. Michael Walzer puts the case in these terms:

PoHtics (as distinct from mere coercion and bureaucratic manipula¬
tion) depends upon shared history, communal sentiment, accepted
conventions — upon some extended version of Aristotle’s “friend¬
ship.” . . . Communal life and liberty requires the existence of “rela¬
tively self-enclosed arenas of political development.” Break into the
enclosures and you destroy the communities. And that destruction
is a loss to the individual members, a loss of something valuable,
which they clearly value, and to which they have a right, namely
their participation in the “development” that goes on and can only
go on within the enclosure. ( 1979, 236 )

This argument points out in turn a further danger of cosmopolitanism.
It is true that in its immediate practice a cosmopolitan ethic works
against the internal homogeneity of ethnic or national communities and
thus encourages diversity. But its individuahst logic leads ultimately to
the reduction of national differences, to a sort of overall human homo¬
geneity— and conceivably, to the destruction of the cultural diversity
that many take to be an essential human good.

Toward a Balance

In this chapter, five basic normative positions on membership have been
considered, primarily in light of the assumptions they embody about the
political nature and requirements of persons. In terms of the three basic
symbols of the communal self, the voluntary self, and the universal self,
three of the positions — the closure, choice, and cosmopohtan models,
respectively — focus on a single image. The other two, the strongest of
the five, are hybrids: the culture position develops a logic that is at once
communal and voluntaristic, and the coexistence position a logic that is
both voluntaristic and universal. Although each of these views has dis¬
tant historical roots, there is a sense in which, taken together, they repre¬
sent a historical evolution, in the order in which I have treated them: As
human societies have become ever more complex, centralized, and inter-

1 1 o Ethics of Citizenship

woven, the anthropological focus of political theory has shifted from the
primacy' of the communin' toward die will of the individual and, in¬
creasingly, toward universal aspirations to democratic ideals. This evolu¬
tion has been a function of complex developments in technology', social
organization, and cultural interaction, matched by shifts in epistemolog¬
ical conceptions, religious consciousness, and historical awareness; the
only point I wish to make here is one that did not escape Aristotle,
namely, that political norms are in part historically contingent.

But at the same time, the shift in political norms has been just that and
only that — a shift in emphasis among fundamental concerns that have in
themseh'es remained more or less constant. What our surv'ey of norma¬
tive orientations to membership has illustrated is this: The images of the
communal, voluntarist, and univ'ersal selves each represent important
moral aspects of political life as we know it, aspects that continue to exert
forceful claims, in different measures depending on the national context
perhaps, but generally across the entire human range of political com¬
munities. Not incidentally, each image further provides some basis for
criticizing its counterparts, which explains why the attempt to balance
some or all of these anthropological facets is an un\'ary'ing, if often im¬
plicit, component in those political theorists whose work continues to
influence and provoke us most today — in Aristotle, in John Stuart Mill,
in Locke, in Hegel and Marx, perhaps preeminently in Rousseau. And as
the shortcomings of the positions I have examined indicate, the most
compelling argument for appropriate norms of political membership is
likely to be one that gives earnest attention to all three.

Such an argument will place considerable value on, first of all and
commensurate with its importance in the present age, indi\'idual choice
and commitment as an element of political moralitv'. At the same time, it
will acknowledge that choice alone cannot be absolutized at the expense
of the values of political structure and communal cohesion. Second, in
keeping with the emergent international moraliU' of human rights and
democracy', this argument will assign an important role to justice con¬
cerns and other universal criteria bearing on the question of political
inclusion. Finallv, it will devote attention to an area of concern that has
suffered somewhat under the tenure of liberal ideologies in the modern
West, namely, the question of the moral and political significance of
cultural identitv' and communal ties. A theory' that succeeds in forming a

Political Anthropologies 1 1 1

synthesis of these three elements will not of itself solve specific problems
of political membership, for these are always concrete and vary from
setting to setting. Developing adequate normative responses to mem¬
bership issues will always involve empirical arguments about the scope
and nature of the political entity in question, as well as judgments about
its values and normative structure. What a theory of the ethics of political
membership may aspire to is a defense of parameters within which spe¬
cific solutions should be considered.

Chapter Four
Inequality, Nondomination,
and Human Rights

Some of the crucial points of disagreement in modern member¬
ship debates are of an empirical namre. To what extent does
the acceptance of immigrants harm or benefit the national
economy? How much cultural homogeneity is required for
the smooth and effective functioning of a democratic system of
politics? How much and what sort of civic loyalty is necessary to preserve
the character of a political community' against its enemies? Such ques¬
tions immensely complicate discussions concerning the extension of po¬
litical membership, yet are, at least in principle, amenable in some degree
to solution through social scientific techniques of investigation. This
does not hold, however, for the ethical questions that circumscribe these
issues and lend them their significance with respect to the distribution of
membership. In the formulation of empirical questions, the weight as¬
signed to a certain level of well-being among citizens, or to the mainte¬
nance of explicidy democratic institutions, or to the survival of a certain
t\'pe of political communin' depends on broader commitments regard¬
ing the moral significance of autonomy, human rights, individual wel¬
fare, special relations, and equality. In this chapter, I examine these moral
factors in the course of developing an argument for a set of basic norma¬
tive guidelines for membership policy.

Naturalism and Political Membership

As we ha\'e seen, within political communities citizenship policy' is a
means for fixing the bounds of “in-equality” — the exclusive equality of

Inequality, Nondomination, Human Rights 1 1 3

an in-group, and the inequality of excluded groups. Thus, in the German
case we have been examining, despite a broad consensus that long-term
political inequality for established minorities is an unacceptable pros¬
pect, disagreement continues to reign over how the sphere of equality
should be defined — and over who should be left out of this sphere and
excluded from what we might call political personhood. This central
issue has two sides, one concerning the appropriate sphere of equality
within modern states and the other, the basis for exclusions. Should the
sphere of equal citizenship be delineated according to lines of ethno¬
cultural division (the culture position), or expressions of individual
preference (the choice position), or integration under a territorial au¬
thority (the coexistence position) } Might candidates for political mem¬
bership be excluded on the basis of the lack of a certain cultural identity,
or a failure to pledge exclusive loyalty to the state, or the absence of
qualities viewed as essential for political participation? In addressing
these sorts of questions, I attempt to set out a theory of membership that
retains the deepest insights of the various positions we have examined
without incorporating their shortcomings.

My main premise, introduced in the preceding chapter, is that human
beings are in morally important ways at once communal entities, indi¬
vidual agents, and universal beings. These human characteristics, I ar¬
gue, have important pohtical implications. They determine that vital
human goods depend upon the maintenance of some forms of commu¬
nity, upon the free and protected exercise of individual vohtion, and
upon the secure enjoyment of certain generic requirements of human
being. The goal of an ethical membership pohcy should be to balance
these concerns in the structuring of pohtical membership. The balance
need not be identical for every pohtical community; indeed, we may
expect just policies to vary in accordance with local cahbrations of the
relations among communality, individuality, and universality.^ Yet where
these three concerns are not ah adequately attended to, it should be
recognized, human goods are denied and human beings are, in more or
less obvious ways, harmed.^

The argument is a naturalist argument, in the sense that its warrants
derive explicitly from what I take to be defining moral aspects of human
beings. It is, however, a naturalist argument of a dehberately modest
sort. In making my case I admittedly rely on a teleological conception of

1 1 4 Ethics of Citizenship

overall human well-being; yet my suppositions about human nature and
the human good are intended to remain few and limited. I do not wish
to invoke a timeless theological or philosophical conception of ideal
human nature. Rather, as I will treat it, human nature is neither uniform
nor static. Its contours evolve over time, in response both to changed
material circumstances and to changes wrought by humans themselves.
The argument I make about political membership depends on cautious
judgments — plausible ones, I think — about what humans are under
present conditions, about what contributes to their good, and about
how they may be harmed.^ It is thus an argument about the direction,
not the goal, of a just politics, about immediate political ends, not ulti¬
mate ones.

This theorv’ is developed in two stages, a critical one and a constructive
one. I first trace the broad outlines of my position through a critical
assessment of a powerful contemporary^ treatment of political member¬
ship. In Spheres of Justice (1983), a work that has in great part defined the
terms of current ethical discussions of citizenship, Michael Walzer pre¬
sents a normative account of democratic membership as part of a
broader theory' of distributive justice. Overall, this “defense of pluralism
and equality'” represents an extension of Walzer’s vv'ork on individual
consent and contraa,^ but in his treatment of membership he seeks
preciselv the sort of anthropological balance I hav'e suggested an ade¬
quate theory' demands. He combines a sensiti\'ity' to problems of individ¬
ual consent with a strong defense of the right of communities to protect
their own character, and at the same time a recognition of requirements
of transnational standards of justice. Although his argument focuses on
shared understandings of social goods, he also acknowledges the con¬
straints of broader moral principles. Moreo\'er, in many respects he is
sensitive to the ways in which modern conditions shape and alter the
demands of justice.

I endorse several basic elements of Walzer’s theory', including in par¬
ticular his evaluation of relations of domination and subordination as
the moral basis of claims about equality', including equality' of member¬
ship. However, there are several points at which it is necessary' to sup¬
plement or move bey'ond his analy'sis. Walzer leaves much to be said
on a number of topics: the role of universal moral factors, the self-
containedness of states, the problem of conflicting equalities, the dis-

Inequality, Nondomination, Human Rights 1 1 5

tinctiveness of the political sphere, and the legitimacy of willed political
subordination. In treating these themes, I set about developing a modi¬
fied theory more appropriate to the realities of an increasingly post¬
national world.

The constructive theory of membership I develop is grounded, in a
manner Walzer is loath to follow, in an account of human rights. Such an
account provides a useful framework for articulating the moral force of
Walzer’s central categories of subordination and self-determination. It
also has the virtue of placing claims about the rights of states, groups,
and individuals within a common setting. As I demonstrate, the view
that political membership is a matter first and foremost of human right
has implications both for general criteria of political inclusion and for the
political structuring of democratic states.

My argument proceeds through four steps, addressing in turn the
basis of norms bearing on political membership, the content of these
(human rights) norms, their general implications for the structuring of
political communities, and their specific dictates in regard to the dis¬
tribution of citizenship. First, I show that the very nature of modern
political membership determines that its distribution should be subject
to, or at least constrained by, norms that transcend both the decisions of
the polity as a whole and the desires of individuals — norms that are
today best understood as the requirements of global justice, or human
rights.

Second, I argue that human rights are best understood as rights
grounded in the requirements of human being as revealed through the
experience of domination. In political terms, this requirement translates,
first, into an injunction against specific forms of domination, and sec¬
ond, into a generic right to self-determination. Nondomination and self-
determination are rights that apply not only to individuals but also to
certain morally significant human collectivities, collectivities that cru¬
cially determine the possibilities for human dignity and agency.

Third, I make the case that in modern states, the human right to
nondomination supports a provisional right of the political community
to exclusion, and a categorical right of all settled residents to political
membership. At the same time, the imperative of nondomination sup¬
ports the claims of some collectivities, such as religious and ethnic mi¬
norities, to institutionalized group rights. The rights of groups need not

1 1 6 Ethics of Citizenship

include a positive right to political autonomy; usually, tliey will take a
negative form, such as protections against domination within an overall
context of common political membership.

Finally, I address the role of consent in political membership, arguing
that the appropriate structure for citizenship policies is one in which
residents are at a certain point presumed to be citizens unless they ex¬
plicitly demand not to be included.

Walzer on Membership

In Spheres of Justice (1983), Walzer innovatively examines political mem¬
bership as a social pfood that, because it is in some sense distributed to
persons, is properly considered in the context of an inquir)^ into distribu¬
tive justice. For this reason it is helpful to begin our examination of his
view with a few words about his theory of justice.

Distributive Justice

WalzeFs core idea is that criteria of justice are determined by social
understandings about the nature of specific goods and are hence both
historically particular and pluralistic in nature. Philosophers who seek a
timeless single principle of distributive justice are misguided: “Justice,”
Walzer states, “is a human construction” (1983, 5; unless otherwise spec¬
ified, all references to Walzer are from this book) . Developing a theory of
justice, it follows, is a matter of identifying the normative logics that
inhere not in actual distributions — which may be unjust — but in the
“roughly knowable” (16) meanings people within a society hold about
how specific goods should be distributed.^

The account of distributive justice that Walzer sketches is, from the
start, limited by three important assumptions he makes regarding social
goods. First, while acknowledging that they are not self-contained dis¬
tributive worlds, Walzer explicitly identifies national political commu¬
nities (that is, states) as the appropriate setting for an investigation into
criteria of justice ( 28 ) . Second, his entire discussion relies implicitly on a
belief that meanings about social goods will be more or less coherent and
shared within such societies. Third, he similarlv assumes that while social

Inequality, N ondomination. Human Rights 1 1 7

goods are perhaps not entirely separable from one another, they are as a
rule distinct, so that there exists, in any society, a “separation of spheres”
within which different distributive principles should apply. He thus
posits a world divided into distinct societies, each with its own coherent
geography of distributive spheres. In this landscape, the task of the ethi-
cist becomes a sort of moral cartography.

Having set out this basic picture, Walzer goes on to introduce two
basic normative maxims that presumably hold for aU human societies.
These maxims are framed in terms of a distinction he draws between
“dominance” and “monopoly.” Dominance involves the abuse of goods
in one sphere to gain advantages in other spheres, while monopoly refers
to the control of a given social good by a single person or minority group.
The first maxim asserts that distributive spheres ought to remain auton¬
omous from one another^ — that advantages in one sphere should not
enable the establishment of advantages within another sphere. Money,
for example, occupies a sphere of its own, and its possession should not
bring power within a different sphere involving, say, the distribution of
political office. In support of this “non-convertibility” principle, Walzer
adduces a number of historical examples illustrating the injustice of the
dominance of a single sphere within society. Ultimately, however, his
stance appears to be grounded in his initial account of social goods and
the structure of justice. Built into his picture of plural spheres is the
presumption that they ought to be kept apart. It is because Walzer sees
distributive spheres and their accompanying criteria of justice as natu¬
rally separate that the dominance of one sphere over another strikes him
as wrong.^ Here Walzer adopts, in short, a naturalist position.®

Wafer’s second normative maxim regards the sort of equality that
ought to exist in a just society. The plurality of spheres, he states, should
be reflected in an ideal of “complex equality^’ that takes account of each
individual’s participation in a variety of distinct distributive contexts.
The goal of complex equality is sought through the pursuit of a society
characterized by the absence of dominance among spheres. Equality thus
exists when the possession of advantages in one sphere does not lead
automatically to advantages in other spheres (20) . This view of equahty
is not affected by the existence of monopolies in particular spheres since,
Walzer assumes, disproportionate distributions in one sphere will gener-

1 1 8 Ethics of Citizenship

ally be compensated for in other spheres. One who is disadvantaged in a
given sphere should therefore not be regarded as sulTering from inequal¬
ity so long as this does not in itself lead to disadvantages in other spheres;
and it is to be expected that the same person is likely to enjoy advantages
in other spheres. This addendum reveals another crucial naturalist as¬
sumption undergirding Wal2xr’s position. He assumes that in a just,
dominance-free society, each person will be successful in some spheres
and not in others; the overall result will be a pluralistic type of equality
ensured by a sort of invisible hand. This perception is grounded in his
assessment of human nature; he deems it unlikely that enough people
w ill enjoy ad\'antages in enough spheres to constitute a specially privi¬
leged class (20) His conclusion is this: As long as the criteria implicit in
our understandings of each individual good are properly distinguished
and defended, we will have a broadly equal society. Walzer’s equality is
one not of people but of spheres.

Walzer’s normative treatment of membership is presented against this
backdrop. Noting that “the primary good that we distribute to one
another is membership in some human community” ( 3 1 ) , he raises two
fundamental questions of distributive justice. First, do political commu¬
nities have a right to control who moves to their territor\\^ Second, do
such communities have the right to exclude people living within their
territory from the good of membership? Employing an argumentative
strateg)' relying hea\’ily on analog}'^'’ and appeals to common moral
meanings among his readership, he sets out to show that political
communities hav'e a right, within certain constraints, to deny admission,
but at the same time, a duty to be internally inclusive. More specifically,
he argues that ( i ) in the question of territorial admissions ( immigra¬
tion), political communities (states) should be allowed to determine
whom they admit in accordance with the present members’ shared
meanings about membership, subject to limitations imposed by a uni¬
versal principle of “mutual aid” establishing special obligations to admit
some refugees (44-51 ), and (2) in the question of admissions to politi¬
cal membership (naturalization), democratic states are required by an¬
other universal principle, that of “political justice” (59-61), to make
citizenship available to all adult residents. The resulting formula is this:
States have some political leeway as to w hom they admit, but once they
admit people, they must be prepared to offer them full membership.

Inequality, Nondomination, Human Rights 1 1 9

Immigration

Walzer formulates his argument about immigration as a discussion of the
right of political communities to shape their own populations ( 52, 6 1 ) , a
right he views as the core of the universally recognized value of self-
determination. Although he acknowledges some “external” constraints
on this right, his primary interest is in upholding the state’s right to
establish its own criteria of admission and exclusion. In the end, how¬
ever, his argument seems more a vindication of the importance of univer¬
sal considerations of justice in matters of membership than a defense of
states’ rights. Not only does he greatly limit his claim about the preroga¬
tives of the state through his treatment of mutual aid and political jus¬
tice, but he also employs additional unacknowledged universalist as¬
sumptions regarding political membership in general. In the end it
seems clear that Walzetis initial claim — that national political commu¬
nities are the sole appropriate context for considering questions of dis¬
tributive justice — does not apply to the case of membership.

The structure through which Walzer defines and examines member¬
ship is an important part of his argument. His strategy is to identify what
he calls “internal” and “external” principles for assigning membership.
He begins by linking the socially distributed good of membership with
admission — more specifically, with admission to residence in the terri¬
tory governed by a given political community. Countries that attract
immigrants, “like dite universities . . . have to decide on their own size
and character,” he proposes ( 32) . This raises the question. What external
moral constraints do “we” — those who are already members — act under
in our decisions about who to admit.^ Walzer elects to define would-be
immigrants as “strangers,” and then goes on to address the question
through an argument about duties to strangers. “We” — aU people, pre¬
sumably— recognize a transcultural principle of mutual aid by which
strangers are entitled to our assistance when they urgently need it and
when it may be provided at a relatively low cost to us. How this admit¬
tedly vague principle bears on membership decisions, however, depends
further on one’s understanding of the nature of political communities.

Walzer clarifies his conception of states through analogies with neigh¬
borhoods, families, and clubs. In the process, he reveals some important
anthropological assumptions. For example, in contrasting the closed
membership of states with the unregulated admissions policies of neigh-

1 20 Ethics of Citizenship

borhoods, he argues that the tw^o are mutually interdependent. In addition
to being naturally sedentary', human beings require a degree of cultural
closure, and if this closure were not provided at the national level, it
would be created and enforced at the local level (38). This solution
should be avoided, since local mobility is more important to the exercise
of individual choice than mobility on a broader scale. Rather, we should
concede that “the politics and the culture of a modern democracy proba¬
bly required the kind of largeness, and also the kind of boundedness, that
states provide” (39). States, it seems, provide a sort of natural balance
for securing values fundamental to humans, or at least to democrats. The
only alternative to a system of closed states other than a world of walled-
off neighborhoods — “petty' fortresses” — would be a global state popu¬
lated by “radically deracinated men and women” deprived of what Wal-
zer allows is a generally recognized human right — the right to cultural
distinctiveness ( 39 ) .

For Walzer, the value of the distinctiveness of cultures is what grounds
the right of communities to control admissions ( at some level) . Political
communities are analogous to clubs in the way in which they exert this
right, namely, through fully autonomous decisions regarding whom
they admit. Here, it is important to draw out a point that is rendered
implicit by Walzer’s methodological individualism: This entidement is
in its essence a group right. Walzer is correct in asserting that a right to
control immigration does not entail a right to control emigration and
that immigration and emigration are “morally asymmetrical” (40). But
he does not elaborate on the nature of this asymmetry'. In fact, the rights
at stake are basically sy'mmetrical, but involve different subjects. The
right to control immigration is a right aimed at protecting the self-
determination of communities; the right to emigrate is a right aimed at
protecting the self-determination of individuals. The purpose of each
right is to prevent a certain t\'pe of domination: in the first case, the
dissolution of group identiU' through immigrant movements, and in the
second case, the despotic control of individual members by the state.

A country'^s right to control its membership is, Walzer goes on, con¬
strained in practice by relations that are comparable to family ties. Thus,
contemporary' immigration practices tend to incorporate a “kinship
principle” recognizing special claims on the part of people who are
closely related by blood to members of the political community'. This

Inequality, Nondomination, Human Rights 121

principle applies in general to immediate family of citizens, but Walzer
suggests that this category may legitimately be broadened, at least in the
case of true nation-states, to include immigrants sharing the nationality
of the political community in question. He bases this suggestion on the
view that nation-states are the pohtical expression of a national entity
morally comparable to a family, and asks rhetorically, “What else are such
states for.>” (42) Yet this is a highly dubious apology for the practice of
states, not least because national affinity is a much more ephemeral and
controversial quality than are immediate family ties. There is no reason
to assume that simply because Country X is populated by enough Greens
to consider itself a Green nation-state, all Greens the world over have an
automatic right to be admitted before non- Greens. However, Walzer’s
illustration for this claim — “Greeks driven from Turkey, Turks from
Greece . . . had to be taken in by the states that bore their collective
names” (42) — lends support to a different reason for admitting cona¬
tionals, having to do with the principle of mutual aid. When people are
oppressed because of their national identity in a country in which they
are not dominant, they have a claim to aid; and countries in which their
nationality is dominant are in a unique position to help them. Oppressed
Jews, therefore, may have a special claim on Israel, and oppressed Ger¬
mans on Germany; but might we not wish to recognize as well that an
oppressed Russian Jew or a politically persecuted Iranian has a greater
claim on admission to Germany than a successfully integrated German
American?

Walzer next considers what distinguishes states from their analogues
of neighborhood, club, and family. In focusing on the issue of terri¬
toriality, he immediately introduces another external moral factor. Indi¬
viduals, he says, enjoy a “territorial or locational right”; they are entitled
to remain in the place where they have made a life (43 ) . Indeed, it is only
on the basis of this right that states may justify the right to the territorial
jurisdiction that they all claim. With this move, Walzer builds into his
premises a key element of his conclusions. If the rights of states do in fact
depend on a human right to remain where one has lived, or grown up, or
settled, then the sphere of membership in a given state already includes
by definition every inhabitant of that state’s territory, in a manner un¬
affected by either individual exercises of will or national characteristics.^^

The territorial control exerted by closed and distinct states is justifi-

1 22 Ethics of Citizenship

able, Walzer argues, because it is necessary for effectiv^e political self-
determination. Yet, this does not establish an absolute moral right to
control who enters a state’s territory. The principle of mutual aid, cou¬
pled with the economies of scale resulting from the organization of
states, generates a strong group duty to help needy strangers, and often
this may be fulfilled only by taking them in. States bear a particular
responsibility to admit refugees, especially those refugees who have en¬
tered their territoiy^ and ( i ) were created by the state in question, (2) are
actual or ethnic relatives, or ( 3 ) are recognized as ideological “relatives”
persecuted because of their beliefs. Walzer insists that the external moral
requirements of mutual aid “can only modify and not transform” a polit¬
ical communin^s decisions about whom it will admit (51). But as we
have seen, the right of the community to regulate admissions is derived
from or limited by additional external moral considerations, including
the communal need for closure, the right to cultural diversity, the right
to self-determination, and the locational rights of individuals.

Naturalization

Walzer’s disquisition continues with a discussion of naturalization. The
question he poses in this context is whether ail those living within a
territor\^ are en tided to full political membership: whether citizenship
should go with residence. As noted earlier, Walzer at one point simply
assumes this to be the case, but he goes on to provide additional warrants
to support his view that the state has a duty to open naturalization to all
native-born residents as well as to all immigrants it admits. Here, his
argument relies wholly on another external principle he introduces,
namely, that of political justice.

Walzer begins his reflections on the question of naturalization —
“second admissions” — by examining typical cases in which it is denied.
After suggesting that the reason states often admit persons without giv¬
ing them citizenship is to exploit them economically as “live-in serv'ants”
(52), he goes on to analyse two instances of such servitude: Athenian
metics and contemporary' guestworkers.^* The political exclusion of me-
tics in ancient Athens, he argues, might have been justifiable since “the
dominance of birth and blood over political membership was part of the
common understanding of the age” (55). In modern times, however,
individual consent has come to be dominant. Current understandings of

Inequality, Nondomination, Human Rights 123

democracy agree that political power can be exercised legitimately only
with the ongoing consent of those living within the territory in which it
is enforced. Because it represents the exclusion of residents from their
rightful political voice, the political subordination of guestworkers in a
democracy is nothing less than despotism.

The existence of guestworkers as a disenfranchised and economically
oppressed class violates what Walzer calls the principle of political jus¬
tice: “The processes of self-determination tlirough which a democratic
state shapes its internal life must be open, and equally open, to aU those
men and women who hve within its territory, work in the local economy,
and are subject to local law^’ (60) . Altliough Walzer does not make the
scope of this principle clear, he appears to view it as an external principle
that apphes in a single form to all democracies.^^ As he formulates it, the
principle makes a certain normative claim about the nature of democ¬
racies, namely, that membership in the spheres of law, politics, and the
economy should coincide. Walzer also tacitly accepts here the notion
that ethnicity is not relevant to democratic membership; by emphasizing
the unfairness of the political exclusion of workers who “resemble cit¬
izens in every respect that counts” (59), he discounts the significance of
what is usually the most obvious difference between guestworkers and
citizens of their host countries.^®

In the three criteria of eligibility for naturalization contained in
Walzetis definition — residence, socioeconomic participation, and legal
integration — three types of moral relations are implicit. Residence, Wal¬
zer has already suggested, brings with it a prima facie claim to mem¬
bership: By being born into or settling in a community, one simply
becomes a member of the political community, part of the unit of self-
determination. Socioeconomic activity, on the other hand, represents a
contribution entitling one to the privilege of political membership:
Through performing “socially necessary work” (60), one earns a posi¬
tion in the polity. Enmeshment in the legal system, finally, generates a
right grounded in what the Germans call Betroffenheit — onc\ subjection
to decisions and their enforcement. Because a person is under the au¬
thority of the state, he or she ought to have a political voice.

“Immigration,” Walzer concludes, “is both a matter of political choice
and moral constraint. Naturalization, by contrast, is entirely constrained:
every new immigrant, every refugee taken in, every resident and worker

1 24 Ethics of Citizenship

must be offered the opportunities of citizenship” ( 62) . It is clear, at least
in the case of democracies, that the principle of political justice trumps
the rights of states arbitrarily to restrict membership, obliging them to
open membership to all legally and economically integrated residents.
Yet, here we encounter a crucial ambiguity in Walzer’s formulation, for
opening membership is not the same zs granting it. The problem that
results is twofold: What happens if membership is not accepted? And
what happens if it is offered on unreasonable terms?

Walzer the consent theorist is forced to face the possibility that mi¬
grant workers and others like them might choose not to become citizens
and so to remain resident aliens. One must wonder if Walzer would be
satisfied with the thought of a large disenfranchised minority held to
have “chosen” its subordinate status, an especially troublesome notion
given the difficulties alluded to earlier with the notion of choice in such a
context. The extent to which the decision not to belong can be desig¬
nated as free and binding depends on a number of factors, including
abov^e all the manner in which the choice is structured.

Here, the question of fair minimum conditions for the offer of mem¬
bership arises. On this point, Walzer simply suggests that naturalization
for residents should be subject “only to certain constraints of time and
qualification” ( 60 ) . He is unenlightening on the crucial question of what
these constraints might be.^^ Presumably they vary from state to state —
but within which bounds? Determining whether it is within the purview
of states to condition naturaUzation on, for example, periods of resi¬
dence over ten years, or on qualifications such as cultural assimilation or
the renouncement of aU other citizenships, remains a problem. Prospec¬
tive citizens are to hav'e a choice, but questions persist: How might their
choice be fairly structured? What is a fair price for citizenship?

If Walzer does not provide us with adequate answers to these ques¬
tions, he has contributed a useful framevv^ork for addressing them. The
power of his approach derives largely from its balanced attention to com¬
munal, individual, and universal ethical factors. We have seen how, at the
communal level, Walzer highlights the importance of essentially shared
meanings and defends a group right to self-determination. We have
further noted his basic commitment to individual self-determination and
consent. Finally, as I have taken special care in showing, he also demon-

Inequality, Nondomination, Human Rights 1 25

strates how universal moral structures and principles provide both the
context for and constraints on the distribution of political membership.
In addressing the problem of specific criteria for a just naturalization
policy, we do well to follow Walzeds example by attending to the require¬
ments of the communal self, the voluntaristic self, and the universal self.

Political Membership and Human Rights

In the theoretical framework suggested by Walzer’s work, the balance of
communal, vokmtarist, and universal elements appropriate to an ac¬
count of distributive justice will always be determined to a large extent
by the specific character of the good involved. As we have seen, Walzer
seems to recognize that there is something about the good of member¬
ship, or more specifically about the good of full membership or modern
citizenship, that requires a greater relative emphasis on universal criteria
of distribution than is required in any other sphere. The overall picture
of membership norms that he presents reduces the role of communal
meanings to a Umited sphere of decision making regarding territorial
admissions. The scope of individual voluntarism is confined to the ques¬
tion of whether or not one chooses to apply for naturalization. AU other
membership issues — who receives preference in admissions (the needy
and “relatives”) , at which level closure is enforced (the state) , who has a
right to self-determination (poUtical groups and individuals), who has
a right to remain in a territory (all residents), who has a say in deter¬
mining the shape of admissions policies (all residents), who is entitled
to eligibility for naturalization (all legally and economically integrated
residents), whether cultural homogeneity is an admissible criterion (a
qualified no) — are resolved by Walzer with reference to “external,” that
is, transnational, criteria. In an author who attempts, like John Stuart
Mill, to forego relying on the idea of human rights (xv), and whose
theory consequently emphasizes particular social meanings and individ¬
ual consent, such a dependence on supranational norms is conspicuous.
There are, however, very good reasons for this exception. These derive,
I argue, from the nature and scope of the good of modern political
membership.

1 26 Ethics of Citizenship

The Distinctiveness of Modem Political Membership
Citizenship is a Janus-faced status. In its scope, it is inextricably both
national and international. On the one hand, citizenship is a state institu¬
tion, and individual citizenship is a good in many ways similar to other
goods distributed by a state. Accordingly, some aspects of citizenship,
such as whether one is allowed to vote, or is required to provide militaiy'
ser\'ice, or is provided with welfare, are questions that we expect individ¬
ual political communities to determine, much in the same way that they
determine how wealth is redistributed, or how public space is utilized,
or how criminals are punished. On the other hand, national citizenship
arises only within an international setting, as a category used collectively
by states to divide persons among themselves and to determine the
sphere of their authority. In this regard, it is a matter of transnational
concern, a fact reflected in international agreements on such issues as
statelessness and multiple citizenship. In practice, citizenship is, there¬
fore, a global institution, responsive in some respects to national norms,
and in others to broader norms grounded in contracts among states or in
international customs.

This practice reflects a basic antinomy in the concept of political mem¬
bership, or at least in the concept of democratic political membership.
Even if the idea that a community should have the sole right to deter¬
mine who belongs to it were accepted, the logically prior question of
w'ho should be recognized as part of the community that decides would
remain unresolved. Does democracy^ necessarilv presuppose the closure
of citizenship (Hailbronner 1989a), or must citizenship itself be demo¬
cratic (Oberndorfer 1990).^ Who should decide who belongs? “Those
who are officially already members” is an answer that begs the question,
for there is no reason to suppose that the status quo is a morally defen¬
sible distribution. A second answer would assign such decisions to the
sovereign nation, but this too is a dubious solution. Nations are not
naturally separate, clearly defined entities whose members are objectively
discernible; and even if they were, it would not resolve the question of
whether cultural identity bears sufficient normative weight to determine
political membership, particularly when a territoty' is shared by different
national groups (cf. Bader 1995, 217-21 ). A third answer would recog¬
nize authority in matters of membership as accruing to those w'ho to¬
gether constitute the state through an act of association. Yet, as shown

Inequality, Nondomination, Human Rights 127

in the previous chapter, there are some problems with the notion of
freedom of association in determining who belongs, having mainly to
do with the absence of means other than force for resolving cases of
chsagreement.

What these attempts at a solution share is their recommendation of
criteria of belonging that are internal to political communities. The in¬
adequacy of these attempts suggests that, by its very nature, the problem
of morally defensible norms for political membership can be resolved
only with reference to external criteria of the sort we have been ex¬
amining. States may appropriately provide the context for the rights
of citizens, but only so long as citizenship itself— “the right to have
rights”^^ — is distributed according to criteria that go beyond the inter¬
ests of individual states. In part, this condition holds simply because the
context of decisions about citizenship is transnational in a way that other
political decisions are not. Mainly, however, this conclusion flows from
the character of modern citizenship as membership in a territorial politi¬
cal organization. In light of the degree of control modern states possess
over the lives of their residents, it is the territorial aspect, not the organi¬
zational aspect, that must receive the normative emphasis in democ¬
racies: It is the impartial criterion of xhtplaxe where people have made
their lives, and not anything that states deem important about them —
their personal credentials or ethnic character or allegiances — that ought
to determine their eligibility for political membership.

The grounds for this normative emphasis may be clarified through
some observations about the nature of pohtical membership. We might
agree that appropriate criteria for the distribution of goods such as edu¬
cation, commodities, jobs, or love should reflect social meanings shared
at the national level, as Walzer suggests, or even in smaller communities.
Political membership is in some ways a good hke these others, but it is
also unique in a way that has an immediate bearing on principles for its
distribution. Through the political sphere, people are able to shape other
spheres. As Walzer puts it,

political power is the regulative agency for social goods generally. It
is used to defend the boundaries of all the distributive spheres, in¬
cluding its own, and to enforce the common understandings of
what goods are and what they are for ... we might say, indeed, that

1 28 Ethics of Citizenship

political power is always dominant — at the boundaries, but not
within diem. The central problem of political life is to maintain that
crucial distinction between “at” and “in.” ( i5n)

His point is that through politics, persons are able to protect social
goods from encroachment and domination by other goods. In effect,
having political membership is akin to being part of a volunteer police
force with a special mandate to preserve the autonomy and equality of
spheres.

But putting it this way underestimates both the creative role we as¬
cribe to democratic politics and the difficulty of separating political
actions from social phenomena. Certainly, political measures may legit¬
imately aim at implementing, and protecting, shared criteria of distribu¬
tive justice. But sometimes they will go further, altering social meanings
or interv'ening in conflicts betu^een spheres by, for example, instituting
racial integration or restructuring church-state relations. At least some¬
times, most would agree, these alterations or interv'entions constitute a
just use of power. Politics is, as I claimed earlier, a sphere of agency
through which participants collectively exert leverage on the arrange¬
ments within which they live.

Beyond its effects on social structures and living conditions, political
activity subtly but deeply conditions norms regarding goods and equal¬
ity. It is hard to deny that the social meanings shared by many Western
countries today regarding goods such as, for example, welfare have been
greatly shaped by past political decisions. It is not necessary to identify
the extent of this role in order to recognize the special significance of the
political sphere. Indeed, national identity itself is in large part a political
artifact. Because of the unique importance of political power not only in
protecting but also in changing and shaping the values of any given
territorial political organization, eligibility for political membership re¬
quires standards of a different order than those of other spheres. The
good of citizenship must be exempted from the sort of complex equality
applying to the rest of the spheres, for unless it is distributed on a model
of simple individual equality within the territory of a state, some mem¬
bers of society will be ineligible for activities that may bear on the dis¬
tribution of all other social goods. Since the sphere of political activity is
at its heart concerned with social agency, political membership must be

Inequality, Nondomination, Human Rights 129

distributed to all agents; where it is not, where a monopoly in this sphere
is held by the few, a special form of deprivation exists. The very gravity
of political membership, the manner in which it transcends the two-
dimensional geography of shared goods, is what dictates that it be sub¬
ject to criteria that go beyond the self-contained social meanings of the
state.

What might these criteria be? In a formal sense, in the absence of rules
enacted through a global political process, they can only be norms for the
treatment of persons that are widely held to be universally binding: in
short, what we have come to know as human rights. But what, specifi¬
cally, are human rights, and how do they bear on pofitical membership?
These questions go not to the institutionalization of human rights in
international and national law, but rather to the normative basis of hu¬
man rights viewed as a social practice involving what might be called
global self-determination (cf. Donnelly 1989, 16-19).

Human Rights to Nondomination and Self-Determination
The hallmark of the human rights perspective is its attempt to make
individual conduct, political decisions, and social structures answerable
to standards of a certain type. Human rights standards embody princi¬
ples that subordinate considerations of individual voluntarism or com¬
munal identity to values linked to the sphere of humankind in general. In
this section, I give substance to the perspective I have argued must form
the core of a modern ethics of pofitical membership and support it
through an account of transnational justice developed in terms of the
prohibition of domination. Human rights, in this account, are under¬
stood as rights to nondomination and self-determination that are de¬
signed to protect and foster human beings in their various aspects as
individuals, as parts of communities, and as members of the human race.

Philosophers, theologians, and pofitical scientists have provided us
with many theories regarding the nature of human rights. Often they
seize on a central concept that they hold to capture the basis of human
rights, a fundamental principle which generates the normative force
behind justifiable claims about how people should or should not be
treated. The theoretical landscape is occupied by a formidable array of
such conceptions of the foundation of human rights. One extremely
influential view, for example, is that human dignity, conceived either as

1 30 Ethics of Citizenship

something innate to humans or as something that they are due, serves as
the source of human rights. Another approach, sometimes articulated
in conjunaion with notions of dignit)', justifies human rights as require¬
ments of human agency, understood as the capacity of individuals for
purposive action. A related perspective views human rights as shaped
and secured by the very' nature of rationality?^ On a fourth view, human
rights are entitlements to those goods that are necessary' conditions for
eudaimonia — human flourishing.^^ Other accounts of the foundations of
human rights have emphasized the significance of human needs, exis¬
tence,^"^ self-preservation,^'^ and difference?^ As grounds of human rights,
these concepts are not necessarily mutually exclusive; in fact, they are
often combined, though generally one remains dominant.

What these views all hav'e in common is that they seek to explicate a
substantive account of human nature as the basis of claims of human
right. The move to rights that they all embrace is an expression of
egalitarianism, for at the heart of the notion of rights is the idea that all
subjects of a given class — in this case, humans — are equally entitled to a
given good. Egalitarianism is a universally powerful normativ'e force.
But specific arguments in favor of equality are often weakened by the
inherently controversial nature of the substantive accounts of human
beings on which they are based (cf. Waldron 1987, 162-66). I recom¬
mend a pragmatic approach that attempts to avoid this problem by
dealing only indirectly with the theoretical grounding of human rights,
concentrating instead on the practice through which such rights are
actually articulated and recognized. I believe that human rights do entail
some idea of human nature, but this nature may be specified only dimly
and heuristically, and often — in a fashion reminiscent of classical nega¬
tive theology' — only in terms of what it is not.

The criterion I endorse for determining which human rights we are
entitled to is presaged by Walzer in his reflection on the moral signifi¬
cance of domination (xii-xiv).^^ It is my contention that the human
experience of domination — a t\'pe of injustice invoh'ing a violation
against human nature ( be it understood in terms of digniU' or agency' or
eudaimonia) committed through the agency of others^'* — is what in
practice gives rise to compelling claims of human right. We may — and
do — grant the legitimacy of such claims without a full and perfect under¬
standing of the human nature they evoke. It is easier to tell what repre-

Inequality, Nondomination, Human Rights 1 3 1

sents a (drastic) abuse against some aspect of human nature than it is to
specify what human nature ideally requires and when its requirements
are not met ( cf. Wolgast 1987 ) . This is, I think, a modest epistemological
claim, of a sort appropriate to our relation to moral knowledge in a
world that increasingly values individual conscience and religious plural¬
ism. Still, modest claim or not, if we are to replace substantive accounts
of human nature with the phenomenon of domination as our guiding
normative concept, we must spell out what we mean by it.

What is domination? Domination is, first and foremost, a type of
moral and political experience. It is not simply the experience of inequal¬
ity, as Walzer rightly notes. Nor is it simply the experience of unfree¬
dom (cf. Shklar 1986, 1990). It is the experience, directly or mediated
through social structures, of harm or deprivation or subordination at the
hands of others occupying a position of power (cf. Seidler 1991 ) The
distinguishing feature of this experience is a certain type of social relation
in which one party uses its pohtical position to intervene in another
party’s enjoyment of important goods. Domination is, in short, the
essence of tyranny.

Beyond this assessment, it is difficult to generalize about domination
precisely because it is a contextual phenomenon that varies somewhat in
form according to the particular circumstances that constitute it. In part,
whether domination obtains in a given situation depends on what goods
are important to the persons involved; it may also depend on the sort of
relationship that exists between those who are in a position to exercise
power and those who are not. Thus, deprivation of a good such as, say,
access to the news media might constitute domination for some and not
for others, while restraining freedom of movement, under certain condi¬
tions of authority, might be perceived as a justifiable precaution or a fair
punishment rather than domination. However, this is not, to say that
domination is purely subjective and hence relative, but simply that it is
partially contingent. The surest guide to judging the authenticity of
instances of domination would be through a well-developed phenome¬
nology of domination; that, however, would considerably exceed the
scope of this study. In lieu of this, I offer some provisional observations
regarding crucial characteristics of the experience of domination as a
ground of rights.

The experience of domination is characterized by a three-part struc-

1 32 Ethics of Citizenship

ture. The first part consists of the effects of cfomination on the person
dominated. The victim is exposed to circumstances that prevent the
attainment of some important good that would otherwise be enjoyed. It
is conceivable that these adverse effects may go unmarked.**' Usually,
however, they will be sensed ever more strongly as time passes. These
negative circumstances may be experienced as instigating a loss — of free¬
dom, of funds, or of food. Or they may be experienced as the frustration
of one’s projects or aspirations, or as a personal debasement, or, most
direly, as psychological or physical injury. At this point, however, the
effects of domination are not yet distinct from other sorts of misfortunes
that affect us."*^

The second moment in the experience of domination is the establish¬
ment of a causal link betu'een the effects on the victim and the agency of
others. Where a negative influence on human prospects is revealed to be
not arbitrary', but brought about or perpetuated through the actions of
others, a subtle alteration occurs: the experience is no longer impersonal.
A loss comes to be a deprivation, frustration is transformed into defeat,
debasement turns into humiliation, and injury' becomes harm. The bro¬
ken leg accidentally sustained on the soccer field is not, however, morally
equivalent to the broken leg inflicted in the torture chamber, and the
mere fact that an injury' has human origins does not qualify it as an
instance of domination.

This transition occurs only with the third component of the experi¬
ential structure of domination, in the attribution of culpability' to the
dominator for the effects borne by the victim. Acts that negatively af¬
fect others take on a special character when they are committed in a
manner experienced as in violation of moral relationships with those
persons. How exactly to determine when one is morally responsible for
a given state of affairs is a difficult question that cannot be resolved
here.^^ It is a mistake to assume that an intention to harm is a necessary'
characteristic of domination, for even negligence or acts of omission on
the part of those in a position of power may produce a structure of
domination. Even so, when the circumstances disadvantaging the vic¬
tims are intentionally created and explicitly upheld — as for example un¬
der apartheid — the experience of domination becomes all the more in¬
tense. With the addition of this moral dimension to the other elements
of negative effects and human causality, domination assumes its distinc-

Inequality, Nondomination, Human Rights 133

tive character. Deprivation becomes robbery, defeat is transformed into
sabotage, humihation turns into persecution, and harms come to be
abuses.

The ethical premise of the human rights perspective is quite simply
that domination is wrong.^ To accept this assertion is to accept that it is
wrong for human beings to dominate others; or conversely — from the
point of view of the prospective victims — that it is right for human
beings not to be dominated by others.^® If we consider moral rights to
be, in the most rudimentary sense, justified moral claims,^ then the step
from right to rights in this instance is a small one, and we can state that
human beings have a moral right not to be dominated. This formulation
provides the generic form of human rights.

To fill out this notion, it is necessary to say a bit more about the
character of rights. Analytically, a right, whether moral or legal, is a
relational concept presupposing at least six dififerent aspects, including a
class of subjects, an object, a class of respondents against whom the right
is held, a purpose, an authority, and a social context in which it is held.^^
Hence we may always ask: Who has the right.^’ To what? With respect to
whom? Why? On what basis? Within what bounds? Within this frame¬
work, specific claims of human right are constructed according to the
components of the experience from which they arise. From the three-
part structure of domination — victim, causal link, and agent — emerge
the subjects, object, and respondents of the right. Other features of the
right — that is, the sort of community in which it is held and the agency
with reference to which it may be claimed (who, in other words, is
obligated to enforce it) — depend on the social and political context in
which domination occurs, as well as the hermeneutical context in which
domination is interpreted.^^

Within any catalogue of human rights — including, of course, the
UN ’s Universal Declaration of Human Rights — it is possible to identify
and draw distinctions among the forms of domination that serve as the
basis for each right. In general, the power of claims of human right, in
practice, seems to stand in direct relation to the intensity of the experi¬
ence of domination from which the claims arise.^^ Evidence of this rela¬
tion can be seen in the tendency of international actors to commit them¬
selves most bindingly to act against precisely those sorts of relations that
bear the strongest stamp of domination — such as genocide or slavery.

1 34 Ethics of Citizenship

Further evidence is found in the inclination among theorists of human
rights to distinguish between “basic” human rights and those occupying
a lesser priority. “Basic rights” seem as a rule to be those rights pertain¬
ing to the strongest forms of domination threatening members of con-
temporaty' societies — political “disappearances” state-abetted poverty
and hunger, arbitrary arrest and detention, torture, and persecution on
grounds of race or gender.^®

Having said something about the source of human rights, we now
turn to the question of their form — that is, of the sort of equality they are
to embody. If human rights acquire their normative force negatively, as
direa responses to inequalities or differential treatment of a certain char¬
acter, as rights they also, if less directly, embody a positive strategy aimed
at creating a certain type of equality. Yet what sort of equality should
human rights aim to create? Walzer provides us with one candidate.
Eschewing conventional notions of simple individual equality, he pro¬
poses a more nuanced and intricate conception; complex equality, a state
of affairs characterized by the absence of the dominance of any particular
sphere. Yet by defining the egalitarian society in purely structural terms,
as a question of relations among social spheres, he goes so far as to
divorce equaliw from actual human beings. In contrast, equality as I de¬
fine it is characterized by the absence of domination not among spheres
of social meaning, but among human beings themselves, in all their
x arious individual and social capacities.

Thus far, I have deliberately spoken only in terms of human nature and
goods for human beings generally. An extra step is required to extend my
claims specificallv to “indi\iduals,” and to do so at this point would be to
be guilty of premature specificity. Like the concepts of society or the
community or the group, the concept of the individual is an abstraction,
and indeed many important aspects of human being are not individual in
nature — such as language, religion, culture, even our perceptions of
shapes and forms. Because our communal forms of human being may
also, if in ways different from those we experience as indi\tduals, be
subordinated or subjected to domination, it is necessary' to view equality
in more flexible, diversified terms. National groups, ethnic groups, lan¬
guage groups, and religious groups may all be oppressed and may all
have their existence threatened. The victims of such acts are al\\'ays people,

Inequality, Nondomination, Human Rights 1 3 5

of course, but depending on the form of domination, sometimes these
people are best understood not as individuals (that is, as distinct and
independent human agents), but rather, by way of differentiation, as
“persons,” that is, group members, people defined as parts of a group
that acts or is acted upon as a group, independently of its specific mem¬
bership.®^ Given the fact that groups may be dominated and harmed qua
groups,®® there is no prima facie basis for saying that the equality sought
by human rights should apply only to human beings conceived as indi¬
viduals.®^ The subject of the right, it makes sense to stipulate, should
reflect the anthropological nature of the good at issue. The goal of hu¬
man rights is, then, a type of equality characterized by the absence of
domination of human being in all of its various structures.®®

To summarize, human rights are entitlements of people (individuals
or groups) not to be dominated (in respect to some human good) . The
epistemic asymmetry of human harms and goods determines that human
rights are most strongly justifiable as responses to or defenses against
relations of dominance; only in a weaker manner may they be defended
as steps toward an egalitarian order in which human beings in their
various capacities are empowered to pursue their individual and com¬
munal goods.®^ We can thus speak of nondomination as the primary
norm of human rights, and self-determination — which, as we have
noted, similarly applies to both individuals and groups — as a subsid¬
iary norm. Insofar as a group or class of individuals is denied, through
some action or human state of affairs, the opportunity to exercise self-
determination, the case can be made that that class or group is being
dominated. That domination exists will be all the more clear, however, if
it is manifest that such a class or group is being seriously harmed and its
survival jeopardized. And when the right to self-determination of one
group comes into conflict with the right to nondomination of a minority
or other group, the right to nondomination as a rule deserves priority.
This ordering of rights bespeaks, I believe, a widely shared moral intu¬
ition regarding clashes between autonomy and survival. We now have an
idea of the basis and form of the human rights standard that, I have
argued, should be recognized to govern considerations of political mem¬
bership. Our next task is to examine the implications of this standard for
the structuring of modern societies.

136 Ethics of Citizenship

Political Communities and Rijjhts of Membership

One aim of my argument up to this point has been to redefine the central
conflict at issue in many national membership policies such as Ger¬
many’s. The central source of disagreement in debates over membership
is usually formulated as a conflict betw'een the positive rights of the
sovereign nation-state and the human rights of residents. But this juxta¬
position of two competing moral worlds — one defined by citizenship
and the boundaries of the state, the other encompassing all humanity —
does not capture the actual shape of the problem. As I have tried to
show, in virtue of their very structure, questions of membership occupy
a normative context that encompasses and goes beyond the state —
namely, the context of human rights. To say this is not simply to discount
the claims of states; it is rather to draw such claims into a human rights
discourse. It is to say that states may have rights not because they say
they do and can back this claim with coercive force, but because as
representatives of communities that embody important human goods
they may plausibly invoke human rights. The rights of human beings
qua individuals have the same general ground and form as the rights
of human beings qua political communities — or the rights of human
beings qua other sorts of morally important groups. This is not to say
that conflicts among these sorts of rights are easy to resolve, but it is to
suggest that they do not turn on incommensurable moral commitments.

We may see what difference this claim of commensurability makes by
examining how some of the basic issues that arise in membership policies
are treated under the human rights perspective I have proposed. First of
all, to reiterate, the distinctive position of the political sphere in relation
to other spheres gives it a unique potential to become involved in rela¬
tions of domination; for this reason alone a special interest exists in
making political membership as open as possible to all morally impor¬
tant entities within the state. But let us focus for now on individuals.
From the standpoint of each constituent of a certain set of individuals
(namely, those subject to the authority of the political decisions of a
territorial state), not to possess full political membership is to be dis¬
advantaged in one or more phenomenologically significant respects. If
the state is democratic, politically excluded individuals are deprived
of a valuable aspect of self-determination: a voice, however small, in
decision-making processes gravely affecting the conditions under which

Inequality, Nondomination, Human Rights 1 37

they make their lives. An exclusion such as this falls afoul of what was de¬
scribed above as a subsidiary human rights norm. More importandy, re¬
gardless of the democratic character of a state, excluded or subordinated
individuals are subjected to policies that affect nearly every aspect of their
lives, yet are set by a collectivity of which they are not a part and which
need not consider their well-being.®^ This state of affairs represents a
violation of their primary human right, the right to nondomination. The
minimum requirement of human rights is, on this analysis, a right to
membership applying equally to all members of the group in question.
And following the universal practice of states, this group includes not
just citizens, but all established residents within the territory.®®

Now, to say that all those residing in a state are entitled to political
membership is to go a bit further than Walzer does in his claim that
citizenship should be open to residents “subject only to certain con¬
straints of time and qualification.” What limitations may apply to this
right To begin with, a certain temporal qualification inheres in the
notion of residence. It is generally accepted that residence takes some
time to establish. One reason is phenomenological in character: The
experience of settling in a society, of belonging there, of having a stake in
the running of the community unfolds over time. Another reason is
structural: Generally a period must elapse before political activity from
which one has been excluded (or in which one has participated) can
exert its effects and thereby ground judgments about domination (or its
absence). For these reasons, membership policies may legitimately in¬
clude in their definition of residence a duration requirement, based on
the time it is judged to take to establish that a person is not a transient
and that he or she is fully enmeshed in the political and legal system. This
requirement, I think, might reasonably be expected not to exceed a few
years, although a case for a longer period can be made.®^

Another prospective limitation on a right to membership invokes the
notion of competence. Here the question is whether the individual pos¬
sesses the abilities required to fulfill the social role embodied in the
notion of political membership. An answer to this question hinges on
the character of political membership in the respective state. Again, a
broad distinction may be made between nondemocratic and democratic
countries. Where political membership is more or less a matter of sub-
jecthood, that is, of simply being subject to the rights and duties apply-

1 38 Ethics of Citizenship

ing to citizens, no special competence would appear to be required. In a
democracy, on the other hand, an important component of citizenship is
the right and dun,' of political participation, and this requires a degree of
responsibility and foresight commonly attributed only to adults. Conse¬
quently, democratic political communities may justifiably distinguish
betw'een two classes of members: adults, who in addition to enjoying
other rights and duties of citizenship, constitute the pool of political
participants, or demos; and children and new residents, both of whom
have limited rights and duties for the time being but enjoy the promise
of full membership with time.^*’ For the class of potential full citizens, it
is only the provisional nature of their exclusion, or the relative certainty
of their eventual inclusion, that justifies their current subordinate status.

We must now consider how the right of individual residents to politi¬
cal membership relates to the right of the territorial political community
to determine its own character. This question has several dimensions. A
stable political community — be it a democrat', an oligarchy, or an
anarchy — is, it has been observed for centuries, integral to the human
good. We can agree on this without invoking a timeless and universal
conception of human nature, simply on the basis of the observation that
persons deprived of any political membership are more often than not
condemned to various forms of hardship, to physical insecurity, and to
the frustration of life plans. Political organizations may provide a defense
against such forms of domination; beyond this, they may provide the
opportunity for a level of self-determination that utilizes economies of
scale to extend the possibilities for the well-being of members. There is
consequently a basic human right at stake in the survival of political
communities, and a subsidiary one in their ability to develop themselves
as they see fit.

The order of these rights determines in turn the rights of states in dif¬
ferent areas of membership policy. In the question of territorial admis¬
sions, for example, what is usually at issue is the subsidiar\' right of the
political community to determine its character and direction by allowing
in only the immigrants of its choice. As a right of self-determination, this
right will be outweighed in cases in which it may be demonstrated that,
for prospective immigrants, a right of nondomination is at stake (for
instance in cases involving political or “economic” refugees, or race
discrimination). However, when only the migrant’s individual right of

Inequality, Nondomination, Human Rights 139

self-determination stands against the right of the community, then the
migrant no longer has a superior claim. And in situations in which
migration is of such a scope or nature that the very survival of the politi¬
cal and social order of the state becomes threatened, the state might
conceivably invoke the right of the commimity to nondomination in
closing admissions even to individuals threatened by oppression and
subordination. Such extreme circumstances, however, are extraordinar¬
ily difficult to demonstrate and would require extensive empirical sup¬
port before becoming morally compelling. For this reason, it is unlikely
that the exclusion of individuals in truly dire need could ever be justified
in practice. Here — and it is an important point— individuals have a
firm epistemic advantage, for they are far more likely than states are to be
able to show that a primary human right is at stake in the question of
their admission.

In the matter of internal inclusion, a political community’s human
right to self-determination once again comes up against what I have
argued to be a right to nondomination — the human right of residents to
political membership. Once again, the primary right should take prece¬
dence over the subsidiary one. And here, it is difficult to imagine a
situation in which the group right to nondomination would be abro¬
gated by the political inclusion of residents. “ The only viable scenario of
this type would be one involving large numbers of illegal immigrants
who had successfully settled in a country. One could arguably make the
case that admitting such a population to citizenship would result in the
destruction of the social and political order, but this would be very
difficult to demonstrate satisfactorily.^^ So long as any reasonable doubt
remains as to whether the state is actually threatened by domination, a
presumption in favor of the rights to nondomination of noncitizen resi¬
dents should be upheld. Otherwise, the possibility arises that the domi¬
nation to which they are subject will be intensified by the experience of
unwarranted rejection.

One component of the right to self-determination often claimed by
political communities is the right to enforce cultural homogeneity in the
interest of maintaining a national cultural identity. As noted earlier, the
idea of cultures as even potentially homogeneous units stands on shaky
empirical ground. Apart from this, though, it is worth emphasizing that
in matters of “culture,” the claims of groups that happen to possess

140 Ethics of Citizenship

control of a territory are not different in kind from the claims of minority
cultural groups. Because the goods involved in cultural community (lan¬
guage, shared mores and structures of meaning, religious expression,
artistic expression, and so on) are only loosely bound up with those
of contemporary political community ( political self-determination, se¬
curing, economic efficiency, redistribution of resources) there is no com¬
pelling basis for making political membership dependent on cultural
membership. It follows that political inclusion in modern states may not
justifiably be made contingent on the adoption of the cultural identity of
the majority culture.^ This would — to invoke WalzeEs terms for a dis¬
tinctly non-Walzerian point — represent the dominance of culture out¬
side its sphere.

In a human rights -based ethics of membership, the interest of na¬
tional majorities in preserving their cultural identities is overridden by
the need of minority cultures for a structure of group rights and protec¬
tions. Minority groups are far more likely to be undermined and op¬
pressed than are majority cultures. When the right of a dominant cultural
group to self-determination comes into conflict with the rights to non¬
domination of relatively coherent minority communities, then so long as
the majority culture is not thereby threatened with domination, the
minority cultures possess a legitimate claim to certain types of limited
protections, and perhaps even to active support from the state. The
topic of group rights is taken up in more detail in the next chapter.

Consent and the Conditions of Naturalization

Our discussion of human rights thus far has tried to reconcile, or at least
render commensurable, claims involving humans as universal beings and
humans as communal beings. But so far nothing has been said about
humans as willing and choosing beings. In particular, we have not yet
addressed the question of consent. Is there room for the voluntary^ self in
the account of human rights we have sketched?

The role of consent in the distribution of membership has been a
central concern of several contemporary^ writers on citizenship, most
notably Walzer and Peter Schuck and Rogers Smith. Schuck and Smith’s
book. Citizenship without Consent (1985), uses the problem of illegal im¬
migration to examine questions about the fundaments of political mem¬
bership. In it, they develop a distinction between ascriptive grounds of

Inequality, Nondomination, Human Rights 141

citizenship, which emphasize parentage or place of birth, and consensual
grounds, which emphasize voluntarism and commitment. These two
grounds represent the opposing sides of a fundamental moral conflict
between “transcendent human rights” and consensualism (41). They
then argue that, for historical, political, and moral reasons, the United
States should place greater emphasis on consent in its membership pol¬
icies than it previously has; more specifically, it should predicate the
extension of citizenship on “mutual consent”: “the consent of the na¬
tional community as well as that of the putative member” (6) . National
consent should be expressed in laws adopted by representative govern¬
ment, and individual consent, in the application for naturalization ( 7) .

Acknowledging individual consent is important for membership pol¬
icies, for denying the possibility of consent would constitute a form of
domination. But the logic of Schuck and Smith’s position, despite its
proviso that the “recognized human rights of ahens” must be respected
(6), supports the conclusion that on the basis of aggregate individual
choice (not security or communal cohesion), nations should be free to
exclude any noncitizens they wish from membership — regardless of
their residence in, legal integration under, or contributions to the state.
And this exclusion involves a different form of domination. Such a situa¬
tion would establish the immunity of states to claims for nondomination
on the part of long-term resident aliens; in so doing, it would violate
these residents’ human right to inclusion. For this reason, from the
perspective I have proposed, Schuck and Smith’s notion of mutual con¬
sent is an inadequate basis for an ethical membership pohcy. Because
residents do not have the option to exempt themselves from the coercive
territorial authority exercised by a political community, it would be un¬
just to make the basic conditions for poUtical membership a matter for
political decision.

Walzer, in his treatment, focuses on a different aspect of consent. A
self-described consent theorist, he asserts that democratic rule requires
the ongoing consent of all residents of a state ( 1983, 58-59) . At the same
time, he also allows that resident aliens may “choose not to become
citizens,” that is, choose not to commit themselves to their country of
residence, but rather to return home to their country of origin, or to
remain as outsiders (60). This latter possibility — that some residents
may deliberately close themselves out of the arena of consent and self-

1 42 Ethics of Citizenship

governance in the society in which tliey live — seems to conflict with the
spirit of Walzer’s commitment to democracy^ Still, as long as this choice
is made not once and for all ( in the manner of Locke’s notion of express
consent), but in an ongoing fashion, as a consistent commitment to
alienage, it may be understood as a justifiable expression of individual
autonomy. A problem with this view of consent arises, however, when
one considers how such a decision is likelv to be formulated and ex¬
pressed in practice. As the German case clearly shows, failure to natural¬
ize may often signify something considerably less than a free act of con¬
sent to a subordinate political status, particularly when it occurs in a
subtly coercive atmosphere marked by the official promotion of an “illu¬
sion of return.”*^ If personal consent is to be given its due, much impor¬
tance must be assigned to how the choice of political membership is
structured.

The specific nature of the choice facing foreign residents generates
significant consequences for a human rights-oriented political member¬
ship policy. As I have claimed, it would be a form of domination to
ascribe the rights and duties of citizenship to immigrant residents inde-
pendendy of their choice. Yet under current conditions in Germany and
elsewhere, in the absence of a fully decisive commitment to remain,
citizenship is generally not sought. Because of the ever-present pos¬
sibility of imminent return, the decision to commit oneself to stay is
rarely made. As a result, many foreign residents are politically excluded
not because they decide for alienage in an act of consent, but by default.
In other words, the current structure of the choice of whether or not to
naturalize, favors the perpetuation of a disenfranchised foreign resident
population.

A naturalization policy that hopes to do justice to the human right to
political membership, while at the same time respecting the \'alue of
consent, must take the problem of the nature of choice into account and
structure the process for granting pohtical rights accordingly. When a
resident deliberately turns down an offer of citizenship, this constitutes a
stronger expression of consent than wBen one simply declines to apply
for naturalization. For this reason, the element of consent in naturaliza¬
tion policies best takes the form of a power to refuse a status of political
membership extended presumptively to all established residents. A pre¬
sumption in favor of political inclusion would leave untouched each

Inequality, Nondomination, Human Rights 143

person’s freedom not to belong. At the same time it would help guaran¬
tee that those uncertain of their ultimate hfe plans would not be assigned
to a marginal, politically subordinate status unless they truly and ex¬
plicitly desired to be.

A Normative Theory of Political Membership

The theory of political membership I have proposed adopts, with some
modification, Michael Walzer’s method of groimding judgments about
justice in accounts of social meanings regarding the good in question. I
have argued that political membership in the modern world is, as Walzer
implicitly recognizes, distinctively a universal good — and that conse¬
quently, universal criteria apply to the question of how it ought to be
attributed. I depart from Walzer in proposing that these universal crite¬
ria are best conceived as human rights, organized around a basic princi¬
ple of nondomination. According to this conception, political commu¬
nities have a prima facie (second-order) human right to choose whom
they admit to residence in their territory; but this right may be out¬
weighed if putative members can show that a first-order human right is
at stake in their being admitted. Already estabhshed residents, I have
further claimed, not only have a right to political membership, but
should be granted full — or, in the case of children, potentially full —
membership status unless they make a point of refusing it. Moreover,
cultural groups also possess human rights that support first-order claims
for protections on behalf of oppressed or dominated groups. The inter¬
est of a dominant culture in enforcing assimilation, by contrast, invokes
a second-order right— that to cultural self-determination — which is out¬
weighed by the first-order interest of minority residents in not being
pohtically excluded.

This normative account of political membership seeks to balance the
three political anthropological values of communality, voluntarism, and
universality. Beyond this, it seeks to integrate them within an overall
framework of human rights, conceived not in terms of static features of
persons, but rather with reference to shared problems encountered
within a context of power relations. In a manner dictated by the vicissi¬
tudes of modern political life, the universal self lies at the heart of this

1 44 Ethics of Citizenship

account, embodied in the central contention that people qua human
beings are entitled to belong to the political systems to which they are
subject. The communal self also has an important role, specifically re¬
garding the rights of people qua political and cultural groups to self-
determination and protection from domination. This part of the argu¬
ment is a recognition that people are not simply reliant on groups; in
certain morally important ways, people are groups. Because we are not
merely individuals with cultural memberships, but rather beings to some
extent constituted by the human groups to which we belong, we have a
deep stake in respecting and promoting group rights. Finally, the ac¬
count presented in this chapter also reserves a place for the voluntary self
through its insistence that people qua individual agents be allowed to
exercise consent in questions involving changes in their political mem¬
bership. Of the membership orientations discussed in the preceding
chapters, the view I have sketched here is most closely aligned with the
universalist commitments of the coexistence and cosmopolitan posi¬
tions. However, in its suspicion of the reductionism inherent in an ex¬
clusive focus on individual rights — and in its corresponding concern
for communality — it also has something in common with the culture
position.

It can hardly be ignored that an important limit for this theory of
political membership is posed by its assumption of a cohesive global
structure of state citizenships. For as international political structures
evolve, so too must their membership mechanisms, posing again and
again the question of appropriate norms for the attribution and distribu¬
tion of membership. An obvious example is provided by European inte¬
gration, which is in the process of substantially altering the shape of
citizenship in Europe, and with it the status of migrant workers in Ger¬
many and in other member states.

Yet, just how much is European integration actually likely to change
the basic issues of political membership addressed here.> European pol-
icv'makers are committed in the long run to securing full political rights
for migrant workers from member countries in all other member coun¬
tries. It seems likely that the eventual shape of a politically unified Eu¬
rope will be a confederation of states with a common market, freedom of
movement, and reciprocity of citizenship privileges among states (Jes-
surun d’Oliveira 1990). Whether or not integration will proceed beyond

Inequality, Nondomination, Human Rights 145

that to a federal state system with a tmified citizenship is questionable.^^
In either case, the European Union will almost certainly continue to
maintain boundaries against the rest of the world, exercise sovereignty
within its territory, and exclude foreigners from the status of pohtical
membership. Regardless of whether there are as many naturalization
procedures as there are member states, or a single unified one, non-EU
residents will stiU have to gain access to citizenship in order to obtain
political rights.

From the point of view of this study, it is encouraging that such
residents will in all likelihood be able to benefit from the continually
increasing currency of the human rights discotirse in the European
Union. And as parties to the EU continue to evolve from nation-states
into national groups within a larger political system, it is to be antici¬
pated that the idiom of human rights will be extended more and more to
the explicit concerns of groups (cf Kuhnhardt 1994) • At the same time,
however, the resurgence of nationalist sentiments in EU countries such
as Germany and France, in the former Soviet republics, and above all in
the remnants of what was once Yugoslavia poses a considerable barrier to
the apphcation of human rights standards in the structuring of political
membership.

Beyond the developments in Europe, are there signs to indicate that
the global system assumed by my argument is already giving way to
newer models of pohtical organization.!* Growing economic interdepen¬
dence among states, supranational organization, and international mi¬
gration have ah been identified as symptoms of a fundamental chaUenge
to state sovereignty.^* It does seem clear that states increasingly experi¬
ence incursions into their affairs by various international actors. It also
seems clear that the foundation of state sovereignty — the ideal of nation¬
state citizenship — has been eroded and to a large extent replaced by a
system in which social, economic, political, and national memberships
are no longer congruent (see Roche 1992; Soysal 1994; Baubock 1994) •
Over time, the distribution of goods within state societies has come to
be governed more by universalist considerations of respect for person-
hood than by traditional national interests. The idea of democracy has
attained an unprecedented global popularity, and some have even begun
to speak of a world polity (see, e.g., Thomas et al. 1987) • The concept of
human rights has firmly entrenched itself in policy discussions the world

146 Ethics of Citizenship

ov'er, and human rights activism at the international level continues
apace.

Yet, the institutionalization of human rights as it has evolved interna¬
tionally demonstrates, paradoxically, the continuing strength of state
sovereignt}'. Within states, even when human rights are cited as tlie
normative basis for a particular policy', this legitimation is taken to pre¬
suppose the territorial state as the instrument for and scope of imple¬
mentation. And in the current world order, all international human
rights instruments have been established by and remain dependent upon
sovereign states. This set of circumstances is unlikely to change in the
foreseeable future. A global political society in which the lands we in¬
habit are no longer divided among competing sovereigns is not yet in
sight. For this reason, we may expect that for some time to come, where
we reside, work, and make our lives will remain of central importance for
the just distribution of political membership.

Although the ox erall argument thus far has been developed against a
backdrop of concrete political considerations, the ethical theory' of polit¬
ical membership I have defended remains at a high level of generality. It
remains to be seen what sort of answers it might support in response to
specific problems of membership policy such as those we have encoun¬
tered in the German case. What, on a human rights-based view of mem¬
bership, are acceptable criteria for the distribution of membership in the
German political community!’ Ought German citizenship to be an exclu¬
sive identity, or is dual citizenship a tolerable option? What sorts of
groups in German society are entided to the protection of their cultural
identities? In the final chapter these questions are taken up in a renewed
discussion of the case of the foreign worker population in Germany.

Chapter Five
Citizenship and Group Rights

I’ t is wrong for people to dominate others. This claim is the touch¬
stone of the human rights criteria that I have argued should
govern our approach to questions of political membership in
modern states. Where not clearly consented to, the exclusion of
. long-term residents from the benefits and protections of full
membership constitutes a form of domination. Such residents should be
recognized to possess a human right to political inclusion. As a right of
nondomination, the right to political inclusion outweighs the compet¬
ing right of the citizenry to determine its membership according to
internal criteria. Consequently, those persons who have established in¬
definite residence in the territory administered by the state should be
regarded as full and equal members, unless they explicitly reject this
status. In this chapter, the practical consequences of this theory for con¬
temporary citizenship policies are spelled out by tracing its application
to the German case.

It is evident that Germany’s substantial migrant worker population
is entitled to be incorporated into full and equal membership in the
German state. In identifying the requirements of this broad objective
in terms of specific policies, particular attention must be devoted to
two questions. First, how should this incorporation be accomplished?
Second, what political structures are demanded by “fuU and equal
membership”?

The first question addresses the shape of a just naturalization policy
for the permanent resident population. As we have seen, under present
German law naturalization is by no means formally closed to long-term
residents.^ However, difficult questions continue to surround the matter

1 48 Ethics of Citizenship

of the terms on which citizenship should be granted. In what follows the
implications of the human rights perspective I have advanced are taken
up with regard to the question of a fair price for citizenship. The degree
of specificity a political theory can reasonably strive for in making policy
prescriptions is, of course, inherently limited. Nonetheless, a morally
acceptable German naturalization policy will embrace three general
aims: the integration of current long-term residents into the political
community, the acceptance of multiple citizenship, and the automatic
inclusion of future children of permanent residents.

Naturalization policy, however, addresses only half of the problem.
The formal legal status of citizenship cannot by itself secure full and
equal membership in the German state for the subordinated migrant
workers. In an environment marked by ethnic discrimination, socio¬
economic inequality, and cultural intolerance, all members are not equal,
for in such an atmosphere some members will be unable fully to employ
even elementarv' political rights. If groups such as the migrant workers
are truly to be accepted into political membership as equals, some re¬
structuring of the German civitas is required to accommodate them.
Specifically, the extension of individual rights in the political realm may
need to be accompanied by the establishment, in the socioeconomic and
cultural spheres, of group rights such as affirmative action and protec¬
tions for language and religion.

In exploring the demands of equal citizenship for Germany’s migrant
worker communities, I draw on the analysis of subordination in chapter
I and on the view of equality set forth in chapter 4. The issues addressed
in German membership policy are extremely complex and cover a broad
range; as a result it is not possible to examine them here as thoroughly as
they perhaps deserv^e. All the same, I attempt to provide a suitably de¬
tailed account of the sort of priorities for a German membership policy
commended by the morality of rights that I hav^e argued undergirds the
contemporary^ practice of citizenship; where appropriate, I also offer
observ'ations as to the broader applicability and limits of this theory. The
membership structure I envision for Germany includes individual rights
as well as two sorts of group rights: collective and corporate. While this
mixed arrangement is determined first and foremost by the variety of
human rights that are at stake, it is also required for the peaceful func¬
tioning of the multicultural society Germany has become.

Citizenship and Group Rights 149

Political Membership for Permanent Residents

A human right to political membership inheres in the nature of modern
states. States are, in essence, sovereign territorial organizations. It fol¬
lows that their membership — formal citizenship — should in principle
be attributed to those occupying the territory over which sovereignty is
exercised. This inference holds independent of the sort of government
employed by states: The landless peasant who ekes out an existence in a
traditional theocratic society is just as entided to citizenship in that so¬
ciety as is the resident of a liberal democratic state. Citizenship in this
context refers to the bare bones of political membership — the right to
have rights, before these rights are fleshed out.^ The particular content of
citizenship, its benefits and burdens, is determined primarily by the char¬
acter of the state in which it is held, as Walzer and, for that matter,
Aristotle point out. In our traditional theocracy, this content may be
meager indeed; in a democracy, on the other hand, citizenship will by
definition carry with it membership — or at least potential member¬
ship — in the demos, as well as a variety of other rights. In a democracy,
who counts is, first and foremost, simply a function of who is there to be
counted; this number may be determined by a democratic legislative
process only insofar as political decisions are able to control who is
admitted to residence in the first place.

If contemporary state membership is in principle territorial, where
does this leave the notion of the ethnic nation-state.^ Acknowledging the
primacy of residence for citizenship means firmly displacing the na¬
tionalist principle as a norm for pohtical membership on the grounds
that membership in a (putative) historical community is not necessarily
relevant to the question of who should belong to the contemporary
state. This does not mean that nationhood is wholly irrelevant to citizen¬
ship. It may be, as Walzer suggests, that a particular national identity,
either ethnic or pohtical, may form the core of a state’s identity, and may
indeed provide a basis for deciding among prospective immigrants, ah
other things being equal. Such considerations, however, cannot take
precedence over the principle of residence in a world in which an appre¬
ciable number of nation-states, in the true sense of the term, no longer
exists.

The view that citizenship should be confined to members, born or

1 50 Ethics of Citizenship

assimilated, of a national group depends on demonstrating that national
identity is of fundamental relevance to politics. To make the claim stick,
the nationalist would have to show that a law-abiding person who was
born and educated in the nationalist’s country, fluent in its language,
employed and with a secure place of residence, and committed to the
institutions of the state but who had a separate national identity some¬
how lacked a quality morally relevant to full membership. Conceivably,
in a traditional society, permanent residents might justifiably be denied
full (albeit not partial) membership on grounds having to do with the
religious beliefs of the society as a whole. ^ Otherwise, claims for political
exclusion may be based only on implausible ontological or biological
claims about the political significance of national purity. The danger of
such claims is well known.

In chapter i, I traced the history of German membership in terms of
three interrelated groups: the Kultumation, the state society, and the
citizenry. Placed in terms of these groups, my argument asserts that the
citizeniy^ should be shaped to conform to the entire state society, rather
than to the entire nation or to the part of the nation present in the state
society. As integrated members of the state society by definition, all long¬
term residents should be granted citizenship, subject to their approval
but irrespective of considerations of cultural assimilation. This principle
depends upon the assumption that political membership is by its nature
appropriately determined with reference to one’s social, economic, legal,
and political circumstances — jurisdictionally, so to speak — and not ac¬
cording to one’s ethnic or national identity or based on the expressed
preferences of those already holding power. To put this principle into
practice would require several changes in German policy, dealing with
the spheres of naturalization, multiple citizenship, and the attribution of
citizenship, respectively.

Permanent Resilience as the Basis for German Citizenship
An overwhelming percentage of the German migrant worker minority
have long had their Lebensmittelpunkt — xhdiv oificial place of residence
and employment — in the Federal Republic, which should, I have ar¬
gued, qualify them for membership in the German polity. But so long as
this status is denied them, they are deprived of the human right to

Citizenship and Group Rights 1 5 1

membership in the political organization that exerts authority over
them. This denial constitutes a violation of the standard of justice rele¬
vant to the distribution of citizenship. A just policy would establish
integration into the legal, social, and economic structure of the state
society as the basis for political inclusion.

This integration may be presumed to occur with residence established
over a period of years and maintained on an indefinite basis (as opposed
to a period of residence limited, for example, by a university program) .
The long-term noncitizen resident in Germany as a rule pays taxes, obeys
the law, contributes to the economy, and experiences the effects of local
and national politics — including, for example, the burdens of German
reunification — in the same measure as German citizens. His or her chil¬
dren are socialized through the same educational process as their Ger¬
man peers. In short, native-born or long-term resident aliens are in aU
relevant respects the equals of citizens and, given the democratic nature
of the state, should share in the civic responsibility of political participa¬
tion. Adult male residents should, in addition, be prepared to provide
military service where it is required of citizens.^ By the same token, it is
incumbent upon the government to establish political membership for
long-term residents as the central goal of German naturalization policy.

How should this objective be pursued? Germany’s pohtical and legal
structure offers several different possibilities. One option is to pass a
federal law that extends full civil and political rights to all adult long¬
term residents, including members of the migrant worker population,
without necessitating a change in their citizenship status.^ The result
would be a de facto citizenship for long-term residents alongside a for¬
mal or symbolic citizenship reserved for members of the German eth-
nonation and otherwise devoid of content. Such a course would be
unobjectionable from a legal standpoint (Kimminich 1985, 206), and it
would remedy many of the problems of political subordination that have
been identified here. However, a drawback to such a solution is that
maintaining an exclusive symbolic German citizenship creates a fertile
source for expressions of chauvinism and cultural discrimination. In any
event, it is unlikely this strategy would garner much support in Ger¬
many’s current political climate, not least because its separation of politi¬
cal rights from citizenship would be perceived as taking the ongoing

1 52 Ethics of Citizenship

contemporan' devaluation of citizenship to new heights. The difficulties
involved in such a course suggest that the objective we have defined
would be better sought through other means.

The circumstances peculiar to Germany dictate that to include long¬
term residents in political membership will likely require several coordi¬
nated policy steps. As we have seen, for members of the new German
minorities the barriers to citizenship lie primarily in the manner in which
the choice of naturalization is structured. Basic requirements such as
German language competency', familiarity with German culture, and a
knowledge of German political institutions are usually fulfilled, willy-
nilly, through long-term residence. Yet naturalization remains effectively
blocked by two other requirements, one formal and one de facto. The
first is the renunciation of other citizenships demanded by German natu¬
ralization officials. The other is the psychological commitment to remain
in Germany for life, which is entailed in practice by the decision to
naturalize.^ Together these conditions ail but assure that few of those
eligible ultimatelv seek political membership. Both must be addressed if
this pattern is to be altered.

Whether or not to adopt a new countrv' and take on a new civic
identity is a momentous choice. This choice, already difficult, is not
made easier by the efforts of governments to propagate the “illusion of
return” among migrants. In the absence of full and definite knowledge of
our future preferences and interests, there is an understandable tendency
to postpone such a decision. The current German policy penalizes this
course by equating it with a decision to reject the option of pursuing
German citizenship; this decision is then held to justify exclusion from
political membership. In this day and age, few would deny that changes
in citizenship status should not be imposed, but rather should reflect the
will of the persons affected. Yet the w'eight of my argument suggests that
the German policy' would be fairer if it restructured the membership
choice of its noncitizen residents by presumpti\'ely awarding them cit¬
izenship and making the option of nonmembership contingent on a
considered and clearly expressed will not to belong. Under such an ar¬
rangement, for example, a migrant w orker w ho cherishes the prospect of
someday retiring to Turkev or Croatia could postpone a final decision
w'ithout being deprived of the protections and pri\’ileges of political

Citizenship and Group Rights 153

membership. In this case the migrant worker would retain the right to
leave Germany for good;^ statistics show, however, that in the end emi¬
gration is unlikely.

Perhaps the most practical way of extending citizenship to the migrant
worker population would be to enact a mass naturalization coupled with
a right of refusal (see Hoffmann 1990, 167-72). Because the establish¬
ment of the new minorities in German society occurred in a unique
process that has largely run its course, a onetime measure aimed at this
population would go a long way toward resolving the current problem
of mass disenfranchisement. In its historical closure, the foreign worker
immigration is comparable to the episode of the Vertriebene, those Ger¬
mans forcibly expatriated from other countries following World War II.
This similarity raises the prospect of incorporating the foreign worker
population through the same method of mass naturalization used in the
earlier instance of mass migration, namely article 116 of the German
Basic Law, the constitutional provision defining who counts as a Ger¬
man. As a response to historical developments, this article might be
revised to include members of the migrant worker minority in its defini¬
tion of “status Germans,” those entitled to all the rights and privileges
accorded German citizens.

Alternatively, citizenship might be extended through a new citizen¬
ship and naturalization law that would supersede the law of 1913. In
such a law, citizenship could be declared to extend to all those who have
resided for five years or more in the Federal Republic. Whether in the
form of a constitutional amendment or a statute, a mass naturalization
would need to include a clause exempting anyone who expressed a will
not to be included. For those declining citizenship, the rights currently
enjoyed by resident aliens ought to be retained and, where possible, en¬
hanced to include local voting rights. It is unclear which of these various
strategies bears the greatest chance of success. Whatever the legal means
employed, however, the goal of a just policy will remain the redefinition
of German citizenship in such a way as to include those migrants who
have established themselves in German society. As we have seen, a mere
reliance on naturalization on an individual basis cannot achieve this
objective. The migrant worker families have completed their migration;
now the borders of German membership must be moved.

1 54 Ethics of Citizenship
Allowance of Multiple Citizenships

Restructuring the choice of citizenship through a provisional mass na¬
turalization would further considerably the political incorporation of the
migrants. But unless this step were accompanied by an acceptance of dual
citizenship, the number of those who felt compelled to exempt them¬
selves from the measure would remain high. The question of whether
multiple citizenships should be tolerated lies at the heart of the disagree¬
ments plaguing Germany’s debates over naturalization. Is the renuncia¬
tion of other citizenships a fair price to demand for German political
membership, a price required by the nature of contemporar)^ democratic
citizenship On the analysis that has been presented here, it is not.

We saw in the discussion of naturalization and dual citizenship in
chapter 2 that policymakers are divided on several basic normative
issues: whether citizenship should be seen as a right or a privilege,
whether it should be attributed by the government or earned in some
way on an individual basis, whether its distribution should reflect indi¬
vidual attachments or state interests, and whether it should be condi¬
tional on integration into the state society or on a more thoroughgoing
cultural assimilation. The argument I have presented has in each instance
favored the first answer: Those who have made their lives in Germany
have developed a moral relationship to the state that entitles them to be
awarded German citizenship, without further ado and irrespective of any
other ties they may have, including other citizenships. Political member¬
ship, and hence naturalization, cannot in this light justifiably be made
contingent on release from all other citizenships. Multiple citizenships,
already countenanced in a number of other cases by Germany,® ought to
be allowed for the migrants as well.

Legally, there are no insurmountable obstacles to this course. Many
countries other than Germany officially allow dual citizenship.^ No
changes in German law would be required, although by changing its
polic)' Germany would follow several other countries that have already
withdrawn from the 1963 treaty on reducing multiple citizenships. Some
diplomatic efforts might be required to update international arrange¬
ments for reducing conflicts and doubled obligations arising from multi¬
ple citizenships; whether significant problems still remain in this area,
however, is questionable.

Implementing a system of active and dormant citizenships w'ould be a

Citizenship and Group Rights 155

highly desirable course, if the necessary agreements could be procured,
for this would answer a central objection to dual citizenship — the claim
that it allows its possessors double political representation. Under such a
system, a dormant citizenship would represent litde more than a cultural
attachment matched by a right to move to the country in question and be
automatically naturalized. Even in the absence of such a system, how¬
ever, double poUtical representation is often avoided, since the current
practice of most countries suspends rights to political participation for
citizens who have taken up residence in another state.

Two more troubling objections raised by opponents of dual citizen¬
ship are that it leads to dangerously divided loyalties and that it gives rise
to an unfairly privileged class. In response to the first point, it is useful to
distinguish, following Thomas Hammar, among the political, legal, and
sociocultural meanings of citizenship (1989, 84-86). Members of the
migrant worker minority, like other naturalized or repatriated Germans,
often maintain an interest in their country of origin and may prize its
citizenship. This sort of attachment tends, however, to be socioculmral
in nature; politically and legally, migrants usually come, over time, to
focus entirely on their country of residence. Questioning the loyalty of
estabhshed immigrants can be an enterprise of dubious legitimacy, as the
internment of Japanese Americans during World War II illustrates. In
any event, the burden of proof regarding the assertion that national
security is compromised by dual citizenship should clearly be on those
who would use this claim to prolong the disenfranchised status of the
migrant minority.

Concerning the inequality of status between dual citizens and others,
it is appropriate to recall the normative basis for attributing political
membership: political inclusion is due those who, without it, would be
subject to domination in the society in which they make their lives.
Equality of political membership impUes equal inclusion in those politi¬
cal communities that exert power over our lives. Because people do not
always make their lives in only one such community, they may be en¬
titled to more than one membership. Of the migrants in Germany, some
legitimately live not only in two cultures but also in two societies; ac¬
cordingly, they should have some citizenship rights in both contexts (cf.
Carens 1989, 40) . Of course, these citizenships will not always be of the
same sort. Generally, dual citizens will enjoy full rights only in the state

1 56 Ethics of Citizenship

in which they reside or maintain “effective citizenship,” while elsewhere
they may enjoy a sort of dormant citizenship, a status of primarily so¬
ciocultural significance. To deny them some status in their second coun-
tr\' would leave them \ailnerable to domination at the hands of the state,
a domination to which other German citizens are not \mlnerable.“ Al¬
lowing dual citizenship in such cases is thus a concession to equality, not
inequalin^

Jus Soli Citizenship for Children of Permanent Residents
A polic)' linking citizenship to residence and allowing multiple citizen¬
ships would lead to the political incorporation of most members of the
German migrant worker population. Those persons opting to decline
inclusion would do so through a clear act of consent that need not be
final. There would, however, remain one class of persons denied the
status of citizenship through no choice of their own: the children of
those migrants who declined German citizenship. These children would
remain what they are today: official members of a foreign community
they ha\'e in many cases never visited, and official strangers in the only
land they know, subject to the domination of the German state.

The most important consideration regarding these children is that
they are not in any morally relevant ways different from the children of
German citizens. They are socialized by the same system, even if this
system relegates them to a subordinate social status. Their inheritance of
a different citizenship affords them no advantages in the society that is
home to them. At the same time, there is no firm reason to assume that
they will ever leave, even if their parents nurture an intention someday to
return to their country^ of origin. The second and third generations of
resident aliens are in all significant ways integrated into German society,
and they are hence entitled to be included politically in the same manner
that German citizens’ children are: by birth. This moral context supports
the case for adopting some sort of limited jus soli policy granting citizen¬
ship to children born within German territory', regardless of other cit¬
izenships they may possess. In order to prevent the ascription of citizen¬
ship to the children of tourists, diplomats, students, or other nonsettlers,
this policy' could apply only to the children of long-term residents.
Moreover, each child affected would reserve the right to elect which
citizenships to retain upon reaching his or her majority.

Citizenship and Group Rights 157

A jus soli policy might be implemented either via a new Aliens Act or
through a revision of the citizenship law of 19 1 3. Its detractors note that
such a step would represent a break with German citizenship traditions,
but this in itself does not present a compelling reason against it, for the
change could readily be justified as a response to altered historical cir¬
cumstances. In any event, there have long been voices in favor of such a
policy within the German political process (see Huber 1987) . A jus soli
policy, combined with the other policies suggested above, would serve
the purpose of integrating the new members of German society into the
structure of the state. It is difficult to see how anything short of this
combined approach might adequately observe the human rights of all
involved and thereby satisfy the ethical criteria appropriate to the dis¬
tribution of political membership.

Migration and the Establishment of Residence

My central contention that citizenship should be extended to established
residents admittedly leaves important questions unanswered in regard to
the crucial matter of how residence is established. I have considered a
case in which the settled nature of the minority in question is relatively
clear, even if it is not officially recognized. This is true in general of the
migrant worker minorities in western Europe, and true by definition of
all territorial minorities. Elsewhere, however — in Japan, in the Arab oil
countries and Israel, in a number of African and Latin American states,
and in the United States — ongoing foreign worker programs blur the
lines between residence and working visits. Moreover, many states are
now host to substantial populations of illegals and refugees of various
descriptions for whom it is not clear when a return to the country of
origin will be possible. So long as host countries are able to prevail upon
these groups to leave in a timely fashion rather than settling, the issue of
political inclusion of the migrants is likely to be circumvented, especially
if the migrants are accorded economic and social rights during their stay.
As their period of residence lengthens, however, these migrant groups,
precisely because they are distinct from the class of legal immigrants,
sharply focus the problem of settlement and the rights of states to con¬
trol admissions.

One’s claim to belonging increases with residence, irrespective of the
circumstances of admission. Much, therefore, rides on who is allowed

158 Ethics of Citizenship

to enter, and on who is allowed to stay. To what extent is a country
entitled to restrict residence either by expelling recent migrants or turn¬
ing potential ones away.^ The German example illustrates the problem
clearly. Official immigration leading to naturalization in Germany re¬
mains open only to ethnic Germans, immediate relatives of citizens or
permanent residents, and political refugees. But the number of those
who continue to migrate to Germany, either illegally or as refugees who
are not awarded political asylum, totals hundreds of thousands each year,
even if this figure has dropped substantially since the constitutional
amendment in mid- 1993 restricting the right of political asylum. The
question arises as to whether these new migrants should be permitted to
remain, eventually to be incorporated into the polity, or whether they
might justifiably be compelled to leave.

This issue has been addressed in Germany primarily in the member¬
ship debate surrounding the issue of refugees and political asylum. This
discussion has been characterized by an array of responses to a central
normative question — namely, how to draw distinctions among different
t\'pes of would-be migrants ( Unterscheidun0sproblematik) . The responses
have defined a common discourse regarding who belongs to three main
classes of immigrants: those with a right to enter and belong, those with
a provisional right to enter and not be expelled, and those with no right
to enter or stay. Under current German policy, the first category has been
defined to include close relatives of citizens, ethnic Germans, and a nar¬
rowly defined class of political refugees; the second contains various
other refugees who ha\'e been offered temporary' shelter on human¬
itarian grounds or who may not presently be repatriated without sub¬
stantial risk to life; all others, including so-called economic refugees, fall
under the third. Although a detailed ethical assessment of this policy
cannot be essaved here,^"^ two general observations flowing from my
theory' of membership are relevant.

First, a human rights perspective urges a different order of priority
among migrants than that currendy in place. Except in extreme cases, the
question of admissions involves a secondary' human right on the part of
the community, a right of self-determination. In the case of all prospec¬
tive immigrants who are not refugees — including, for example, the great
majority of ethnic Germans — this right of the community stands op¬
posed to a personal right of self-determination, with no clear moral

Citizenship and Group Rights 159

advantage for either side. On the face of things, then, such migrants
cannot as a rule support a claim to enter or to stay as a matter of right. All
they can reasonably expect is that their interests be taken into account in
the formulation of admissions and settlement pohcy. The state, however,
retains the prerogative to gauge its own needs and shape immigration
accordingly. Still, in the German case, prudential considerations, espe¬
cially long-term economic prospects, support the conclusion that intro¬
ducing a program of controlled immigration — for example a U.S. -style
quota system — would be advisable (see Cohn-Bendit 1993, 340-41).
Such a program, which might, in theory, justifiably include some prefer¬
ence for ethnic Germans,^® would provide the government with a tool
for coping with inevitable migration pressures, especially if it were coor¬
dinated with an overall European immigration pohcy. However, the
scope a discretionary immigration program might take in practice is
limited by a crucial antecedent consideration: In regard to admissions,
refugees, as persons with, in varying degrees, a right of nondomination
at stake, enjoy a normative priority over the community’s right to self-
determination.

This discussion of legal migration is complicated in practice by the
class of migrants — many of them refugees of some sort — who lack per¬
mission to enter or reside in the first place. As the number of migrants
who live, the world over, in violation of domestic immigration restric¬
tions continues to grow, an important question arises. Are large popula¬
tions of illegal immigrants — such as the one in the United States —
entitled to citizenship once settled, despite the fact that their presence
expressly contravenes the wfU of the community at large as reflected in its
laws? I believe that under certain conditions they are so entitled, but a
full treatment of this issue would require, among other things, a more
thorough treatment of the ethics of immigration restrictions than I am
able to give here.^^ As with legal immigration, however, the circum¬
stances of persecution and flight are likely to bear a special moral weight.

This brings us to the second point: the right of refugees to non¬
domination, except in cases in which their situation is in some part
attributable to the actions of the particular state from which they seek
assistance, is general in nature and applies to any and all countries that
are in a position to help. The frequent assertion that Germany’s social
fabric and stability have come to be imperiled by the sheer volume of

1 60 Ethics of Citizenship

migration is an arguable proposition at best, and, in die absence of
persuasive empirical evidence to that effect, no normative basis exists for
claiming that refugees may rightfully be expelled. Yet it is hard to deny
that Germany, which in recent years has absorbed as many as 6o percent
of all migrants coming to Europe, has thus far borne a disproportionate
burden of aid with respect to its neighbors. As a community, the Euro¬
pean Union presendy finds itself in a position of responsibility toward a
sizable number of the world’s refugees, and fairness demands that this
responsibility, which entails both an abundant provision of refuge and a
concerted effort to combat the causes of flight, be apportioned equitably
among member states (cf. Hailbronner 1995, 12). Ultimately, of course,
the refugee problem is global in scope, and must be addressed through
cooperative action at the international level (see Castles and Miller
1993)-

Refugees and other new migrants aside, there should no longer be any
question of a fair price for citizenship in regard to GermanUs long-term
resident alien minority. Those migrants and their families who were
drawn to Germany to work and w'ho ended up settling there have al¬
ready paid and continue to pay the price. Now, full membership is due
them if thev want it. Once Germany’s migrant minoriu^ is inducted into
the ranks of citizens, it is to be hoped that the way will be cleared for a
successful completion of their integration into German society. In this
endeavor, however, many obstacles remain. Formal legal and political
equality' can be only a first step toward political equality more broadly
construed. And as we have seen, many spheres remain in which the new
groups in German societv must battle against systemic subordination.
So long as the migrants continue to face severe political, socioeconomic,
and cultural inequalities, they cannot be said to enjoy equal citizenship.
We now turn to the question of what such an equalit}' would require.

Equality and Group Rights

The ongoing histoiv' of the civil rights mot'ement in the United States
provides a telling example of how the search for equality' of membership
does not end with the acquisition of formal citizenship (see, e.g., Karst
1989, 195-96; Weisbrot 1990; Shklar 1991). For members of the new

Citizenship and Group Rights 1 6 1

minorities in Germany, naturalization in itself can provide no guarantee
that they will not remain second-class citizens in terms of their socio¬
economic status, political power, and cultural life. Questions of member¬
ship status are appropriately considered in terms of human rights, and
above all the human right to nondomination. Thus far we have exam¬
ined the implications of this argument for the citizenship status of per¬
manent residents who live under the authority of the German state. But I
have also argued that domination in matters of membership is not only
an individual issue but also may apply to humans as groups. This claim
has important implications for a full account of equal citizenship in a
democratic order such as Germany’s, for it supports the position that
Germany’s permanent residents must, if they are to be included on a
truly just basis, have their social dimensions taken into account. They
must be accorded, in short, certain group rights.

The need for group rights is grounded in the particular sorts of domi¬
nation to which the resident alien minority is susceptible. One sort of
domination, that domination enforced through the subordinate political
status of the minority, may be largely overcome by extending them cit¬
izenship. But resident aliens are also as a group relegated by systemic
forces to the bottom of the German socioeconomic structure, even as
their labor and taxes help German society maintain its prosperity in the
face of its rapidly aging native population. And culturally, the various
linguistic and religious immigrant communities are at once subordi¬
nated in relation to the dominant German secular- Christian culture and
subjected to formidable forces of assimilation. Economically and cultur¬
ally, the migrant worker population remains a disadvantaged minority,
and this must be taken into account in formulating a policy that would
offer them full membership in society on morally acceptable terms.

In restructuring society to include the migrants on equal terms, the
precise ways in which their minority status should be recognized are best
determined by the specific types of domination they face. In discussing
the structure of rights implied by the ideal of equal citizenship in Ger¬
many, it is useful to invoke the analysis of subordination presented in
chapter i . Although the legal and political disadvantaging of some of the
migrants justifies little more than granting them the individual political
rights of citizenship, the position in other spheres of some significant
populations — most notably the Turks — justifies various sorts of group

1 62 Ethics of Citizenship

rights. Specifically, these migrants are entitled in the socioeconomic
sphere to some form of affirmative action and in the cultural sphere to
certain language and religion rights. Three different models of equality
apply to the different spheres of membership: an individual one focused
on political expression, a universal one focused on economic circum¬
stances, and a communal one focused on cultural solidarity.*’ Only an
approach that respects all three models can, in a balanced manner, attend
to the individual, communal, and universal aspects of human beings at
stake in the issue of political membership.

The Nature of Group Rights

The notion of group rights is controversial among Western scholars.
Historically, group-rights claims, like claims for individual human
rights, have arisen as practical responses to specific situations of domina¬
tion or oppression. As a result, group rights have often attained legal
status without a corresponding theoretical justification regarding their
moral warrants. The most conspicuous internationally recognized group
right is that of peoples to self-determination. The long history' of inter¬
national law pertaining to groups also includes prov'isions for the pro¬
tection of minorities ranging from the Treat)' of Westphalia of 1648,
through a series of agreements adopted in Europe following World
War I, to the modern system of minorit)' protections under the UN
regime.^’ The present international human rights system formulates mi¬
nority protections, for the most part, in terms of individual rights,^* but
it also specifies rights that apply explicitly to groups. In addition, it
takes up separately the issue of the rights of indigenous communities.^^
At the national level, in the drafting of new constitutions and in jurispru¬
dence, a growing recognition of group rights has been ev'ident the past
few decades (Sigler 1983, 201; Sanders 1991 ). And at the regional level,
in 1991 the Council on Securin' and Cooperation in Europe produced a
document on the Rights of National Minorities, in which it revises its
definition of the sovereign national state to reflect a new consensus ac¬
cepting that “issues concerning national minorities ... do not con¬
stitute exclusivelv an internal affair of the respective State” (Minority
Rights Group 1991, 30).

However well established the legal and political rights of groups may
be, agreement on their moral foundations remains elusive. Philosophical

Citizenship and Group Rights 163

discussion of group rights tends to take the form of attempts to explain
systematically the basis of the moral intuitions reflected in court deci¬
sions and policies that vindicate group rights-claims (see, e.g., Caret
1983). Much speculation surrounds the question of the relevance of
group membership to questions of right. A measure of consensus exists
behind the social-scientific observation that group identity exists in a sort
of symbiotic relationship with the phenomenon of cultural discrimina¬
tion. In addition, many thinkers subscribe in some measure to the view
that certain sorts of groups deserve to be fostered because of their signifi¬
cance to the moral constitution of their members. Opinions diverge,
however, as soon as debate focuses on the ontological character and
status of groups.^^ And disagreement reigns in particular in regard to
three central normative questions. First, what specific sorts of groups are
entitled to rights, and why? Second, how should these rights be struc¬
tured? And third, how should conflicts between individual rights and
group rights be dealt with? It is necessary to say a word about each of
these theoretical issues before proceeding to an examination of the Ger¬
man case.^^

In the international context, a wide variety of groups contend for
recognition as entities morally entitled to exert autonomy over their
affairs, to receive preferential treatment, or simply to exist. Some candi¬
dates are political groups such as states and “peoples” — a term generally
understood to vary shghtly in meaning according to its context. Others
are cultural entities ranging from dominant national groups to various
sorts of minorities: linguistic, religious, ethnic, and indigenous. Many,
but not all, of these groups have, or at least claim, a territorial base.

Several sorts of considerations are important for determining which of
these groups qualify for group rights.^® The most important consider¬
ation stems from my argument about human rights, nondomination,
and equality and involves the basis for attributing group rights. The
Turkish minority in Germany can present a firm justification for some
cultural protections, but the same cannot be said of, say, German immi¬
grants in the United States today. Palestinian citizens of Israel also
appear to have a good case for certain group rights; it is more debat¬
able whether the same goes for the white minority in South Africa, or
whether some arrangement of individual rights might suffice to protect
their interests. As these examples illustrate, the chief variable at issue in

1 64 Ethics of Citizenship

assessing the basis of group rights is the nature of the domination the
groups face. The strongest form of group right is owed members of
groups that are subjected to domination asjjroups. This domination may
occur in two ways: Persons may be targeted for harms or deprivations
because they are members of a particular group ( for example, in racial
discrimination ) , or the structures of the group itself may come under at¬
tack (for example, in genocide). In either case the people constituting
the group will be entitled by the fact or threat of abusive treatment to in¬
voke a right of nondomination. In addition, a weaker, secondary' type
of right — a right to self-determination — may be possessed by groups
pre\'ented from exercising autonomy on equal terms with other compa¬
rable groups.

Some additional criteria bear specifically on the strength of claims of
group right. One such criterion derives from the manner in which cer¬
tain types of groups, such as linguistic and cultural communities, take
part in constituting our identities as human agents by, for example,
prefiguring our understandings of our experience and the world around
us.^^ In general, the more constitutive a group is of its members’ per¬
sonal identities and agency, the stronger its claim to being an entity
capable of bearing rights. An intuitive recognition of this relationship is
reflected in the evident tendency, in both national and international
jurisprudence, to view the claims of group right made on behalf of
ascriptive groups as stronger than those made for \'oluntaty' assemblages.
A related criterion particularly relevant to autonomy rights is the extent
to which a group exhibits a stronglv communal nature. More cohesive
sorts of communities, such as indigenous cultures, are much more likely
to merit such rights than noncohesive entities such as gender groups;
and similarly, groups with a territorial basis generally have stronger
claims than ones without such a basis. Another important consideration
in such a judgment is often what might be called the degree of cultural
contrast between dominant and subordinate groups. This factor is one
reason why the rights of aboriginal or indigenous groups are generally
seen to be stronger and more pressing than those of other cultural
groups less at odds culturally with the surrounding society.

A final criterion has to do with the moral character of the group. At
times it may be held that groups are not entitled to rights because they'
possess a morally objectionable structure or, in the case of voluntary'

Citizenship and Group Rights 165

groups, purpose. Groups that are committed to values or practices en¬
tailing the domination of their own members or of other groups gener¬
ally fall into this category. For example, if a group is deeply racist, this
orientation generally undermines its claims for distinctive protections.
On the whole, however, it is extremely difficult to formulate general
guidelines regarding the applicability of group rights. The requirements
of a fair structure of political membership will always be determined
partly by the specifics of each case.

With reference to this set of criteria, Germany’s migrant population,
though nonterritorial, nonetheless has a strong case for group rights in
two ways: as a minority subject as a whole to economic and political
domination, and as a collection of several smaller minorities (for exam¬
ple, Turks, Serbs, Croats), each subject to important cultural disadvan¬
tages. For groups deemed to have interests that warrant protections
through rights, the question arises as to the structure of the rights they
should enjoy. Here, the two most important issues are how to conceive
of the subject of rights and whzt shape to give the rights at issue. In regard
to the subject of group rights, it is useful to distinguish further between
collective rights and corporate rights. Collective rights take as their sub¬
jects persons distinguished as members of collectivities; an example
would be affirmative action, in which a certain class of persons is en¬
titled to a special privilege deriving from, and only from, the context of
their membership within a distinct disadvantaged population. Corpo¬
rate rights, by way of contrast, apply directly to groups; hence, rights to
special political representation or autonomy accrue only to entire peo¬
ples or minorities.^^

The basic issue at stake in the question of the shape minority rights
should take is whether individual rights or some type of group rights
should be employed. Opinions vary as to the merits of each formula¬
tion.^^ I suggest, however, that individual, collective, and corporate
rights are each required by different settings, depending on the type of
domination or group interest involved. Moreover, the specific context
determines the shape that group rights ought to take.^^ The strongest
type of group rights arises in response to domination by other groups,
and are hence externally oriented, taking the form either of protections
or of special treatment aimed at compensation for past harms. A sec¬
ond set of rights, also external, seeks to establish the autonomy of

1 66 Ethics of Citizenship

groups — usually territorial ones — vis-a-vis other groups; as rights of
self-determination, these are generally weaker than the first variety.^*
Finally, certain highly communal groups may also have internal rights
bearing upon their members. However, these rights are in general not
very strong and do not, for example, supersede central individual rights,
such as the right to leave the group. Viewed in connection with this
schema, the nature of the German migrant minority qualifies it for, and
only for, group protections and some forms of special treatment.

Acknowledging the moral legitimacy of rights for groups raises the
problem of how to deal with conflicts between the rights of groups and
the rights of other groups or individuals. Despite the claims of some that
the rights of groups and of individuals are interdependent ( see Sanders
1991 ), in practice conflicts inevitably arise. Such conflicts are extremely
difficult to resolve satisfactorily, and there are no theoretical blueprints
for the task.^^ Yet, if the rights of individuals and groups have the same
ground and are morally commensurable, then a basis exists, at least in
principle, for judging their respective weights in given cases. Two espe¬
cially important considerations are the type of rights involved and their
relative urgency^ If the right of a cultural group to surx'ival clashes with
the rights of individuals to nonessential positiv^e freedoms, the group
right is generally to be upheld. A prominent instantiation of this calculus
is the case of the Inuits in Canada, whose right to preserve their tradi¬
tional means of subsistence has rightly been held to justify restrictions on
the freedom of movement of Canadian residents to move into Inuit
territory.^* Sometimes, however, the human right of a group to survival
will collide with individual rights that are so fundamental as to be inviol¬
able. When the cultural practices of endangered groups violate individ¬
ual rights to life and physical well-being, to recognition as a person, to
freedom of conscience, or to nondiscrimination on the basis of race or
gender, in general they should not be protected.^’

Once claims of group right are recognized as legitimate, many dif¬
ferent strategies become available for institutionalizing them."**^ Pro¬
tections for groups may be established through civil rights measures
establishing formal equality before the law or through active antidis¬
crimination legislation. Other strategies include constitutional provi¬
sions of minority rights, “positive discrimination” programs, judicial
activism on behalf of disadvantaged groups, regionalist or federalist re-

Citizenship and Group Rights 1 67

organizations of government, and special voting arrangements."^^ Once
again, to a great extent the appropriateness of different strategies will
depend on the sort of group interests involved in each case. For this
reason a discussion of measures aimed at equalizing treatment of the
German minorities is best organized around the categories of subordina¬
tion identified in chapter i .

Political, Social, and Cultural Equalities

As we have seen, Germany’s migrant minorities face barriers to equal
membership in several distinct yet interrelated spheres of common life.
In the legal structurmg of society — the sphere of apita^-building — they
have been assigned a subordinate status and excluded from the political
process. In the distribution of social and economic benefits — the sphere
of state-building — they have as a group been relegated to a position at
the bottom of the German societal order. And in cultural relations — the
sphere of German nation- building — they have been subjected to pres¬
sures to assimilate and penalized in a variety of ways for not being Ger¬
man. Equal membership for the migrants in the German political com¬
munity will require measures in each of these areas, the shapes of which
are best cast in accordance with the type of inequalities involved. Al¬
though the situation is highly complex, a rough sketch of the main
contours of what might constitute a just solution follows. The type of
equality called for in the political and legal sphere is individual, in the
social sphere, collective, and in the cultural sphere, corporate.

Legally and politically, most of the inequalities faced by the migrants
will be erased once they possess the individual rights accompanying
citizenship. In order to secure their legal equahty most effectively, the
additional measure of some form of antidiscrimination law imposing
penalties for discriminatory conduct would be advisable.^^ Such a law
could be formulated to apply to groups of migrants as well as to individ¬
uals. Apart from this measure, however, there seems to be no call for
special group privileges for the migrants in regard to their legal status.
And in fight of the particular nature of the migrant worker minority, the
same can be said for the political sphere as well. If the minority in ques¬
tion were an indigenous group or a territorial entity, some form of
local autonomy, federalism, or bloc-vote and veto system might well be
called for. But as an immigrant minority distributed throughout Ger-

1 68 Ethics of Citizenship

many and comprising several different ethnic or national groups, the
foreign worker population has no appreciable claim to this species of
rights of self-determination. Effective political participation for the mi¬
grants may be provided simply through inclusion as individuals into the
demos. At most, the process of delineating political districts might be
expected to take account of ethnic residential patterns in order to ensure
that entire cultural minorities are not, in practice, excluded from political
representation.

The social and economic inequalities experienced by migrants will not
be erased or even much affected by a change in citizenship status. The
foreign worker minority is economically and socially subordinated pre¬
cisely as a group, so its situation is not remedied through an individual
rights strategy'. Prospective solutions instead need to focus on migrants
collectively, as members of a systemically disadvantaged minority. The
group-related basis of socioeconomic inequality, in short, dictates that
the structure best suited to promoting equality will be a model of com¬
pensatory justice emphasizing collective rights to what has euphemis¬
tically been called, in India, positive discrimination, and in the United
States, affirmative action. To have the greatest effect, such a scheme of
rights should focus on the second and subsequent generations and
should be established above all in regard to the educational system, for it
is here that the migrants’ subordinate position is presendy most deci¬
sively reinforced. In addition to supporting special treatment for minori¬
ties in schools and job training, the goal of equality in education may also
require some reassigning of students in urban areas where all-immigrant
classes would otherwise be the norm."^ On the same grounds, a policy of
preferment should be instituted in hiring and employment — especially
for the civil setx'ice — and in housing. In general, however, as with the
U.S. form of affirmative action, these collective rights should be under¬
stood to aim at their own obliteration once the structures of subordina¬
tion have been dismantled.

While the goal of equality in the political-legal sphere is the eradica¬
tion of the subordination of individuals, and in the socioeconomic
sphere is rectification of unjust discrimination against individuals as
members of groups, in the cultural sphere it is the defense of groups per
se against domination. The migrants’ cultural groups, be they ethnic,
linguistic, or religious, merit protection where threatened, simply be-

Citizenship and Group Rights 169

cause of their important constitutive role in the lives of the migrants. At
the same time, a pragmatic reason exists for protecting them. Culmrally,
the largest groupings of migrants are sufficiently distinct from the major¬
ity of Germans to make it unlikely that they will quickly be assimilated
(Safran 1986, 109) • Yet, as long as they continue to be subordinated, the
migrants are likely only to exaggerate their ethnic identities and to resist
becoming integrated.^^ For this reason alone, Germany’s minorities de¬
serve to be respected in their group identities as part of an overall strat¬
egy of pohtical inclusion. The nature of cultural communities further
determines that this respect should be institutionalized primarily in the
form of corporate rights because most of the goods at stake are essen¬
tially communal and are hence not reducible to individual goods. In
Germany, the two most important cultural rights at issue involve lan¬
guage and religion.^^

In the matter of language, there can be no question of the sort of
territorial hnguistic rights asserted, for example, by the Quebecois in
Canada. As immigrant groups, Germany’s settled linguistic minorities
can hardly claim to be entitled to any more than the preservation of their
respective languages alongside German within the public educational
system. This entitlement, however, is enough to ground a right, accruing
to each linguistic community of appreciable size, to bilingual education
for its chUdren."^* How this right might be implemented is, of course,
open to debate.^^ It would be advisable, however, for the German state
to provide materials and training for such instruction, if only to diminish
the influence of other national governments in the German school sys¬
tem. The various established linguistic communities might also reason¬
ably expect that care be given to the cultural diversity of Germany’s
students in the drafting of educational materials, especially historical
texts, and that their languages be accepted as second languages for uni¬
versity admissions. Beyond the area of education, these linguistic com¬
munities also deserve access as groups to the media, especially radio and
television, and to public funding for the arts.

The question of the rights of religious groups is raised by the large
Islamic contingent among the migrants in Germany. The nature of Is¬
lam, with its strong emphasis on orthopraxy as opposed to orthodoxy,
renders the maintenance of an active religious community particularly
important for its adherents (Thoma-Venske 1988, 83). For Germany’s

1 70 Ethics of Citizenship

Muslims, the protection of their religion hinges on two issues in particu¬
lar: religious education and the legal status of Islam. On the first issue,
disagreement concerns whether instaiction in Islam should be offered in
public schools or left to private Qur’an courses sponsored by religious
associations. A place for religion classes in public schools is guaranteed
by the German Basic Law ( art. 7, par. 3 ) , and it is difficult to see why the
Islamic community should be deemed any less entided than are Ger¬
many’s Christian communities to have its religious instruction spon¬
sored by the state. Assuming that agreement on a course of study can be
reached, Islamic religion courses should be a prima facie curricular re¬
quirement for Muslims, with exemption or — as is the case with Chris¬
tians — the substitution of an ethics class available upon request. A bene¬
fit of this policy is that it would draw students away from the influence of
the private Qur’an courses, which often activ'ely pursue reactionary polit¬
ical agendas. At the same time, it would go some distance toward accom¬
modating the concerns of more secularized Muslims. Overall equality
for Islam in education, finally, would also require the inclusion of Islamic
scholars in the university system.

Legally, Islam has yet to be recognized in Germany as a “body of
public law” comparable to the Catholic or Lutheran churches, as has
occurred in Austria and Belgium (Abdullah 1985). This important dis¬
advantage must be remedied if Muslims are to have equal membership in
German society. The major obstruction to granting Islam this legal sta¬
tus is that Muslim communities, unlike the churches, do not have a
hierarchical structure that might provide an effective corporate represen¬
tative for the group. But there are ways of overcoming this obstacle, for
instance by forming an Islamic council bringing together the various
elements of the Muslim population, that should be actively sought. If
Islam were to possess this status it would mean that there could be public
Islamic religious holidays, a federal “church tax” for Muslims, military'
chaplaincies for imams, official Islamic charity organizations, and state
aid for religious activities, private schools, and mosques.

Formal parity might also result in the securing of more controversial
rights: for example, the right to slaughter animals without anesthesia,
the right not to be proselytized, or the right to public calls to prayer by
muezzins. Possibilities like these frighten some who worry' about grant¬
ing recognition to a group they see as fundamentally opposed to the

Citizenship and Group Rights 1 71

liberal political and social climate in Germany. In response to them it
should be made clear that group rights for Islam can be extended only in
the context of the overall incorporation of the migrant %vorker minority
into the constitutional order of the Federal Repubhc. This w^Ul neces¬
sarily include concessions and adaptations on the part of the Muslim
community. It is true that historically Muslim populations have had little
experience with existence as a minority culture. Yet there is ample reason
to believe that Islam possesses the resources necessary for adjusting suc¬
cessfully to the demands of life in the diaspora.^*’

The various policy measures I have endorsed here are all steps that
have been suggested by participants in the German membership debates
regarding the migrant population. They are all, to varying degrees, ad¬
missible under German law, and they would furthermore be consonant
with the relevant international law deahng with citizenship and minor¬
ities.^^ Together, the individual, collective, and corporate rights de¬
scribed here constitute the structural conditions necessary for equal
membership in the multicultural society that Germany has become. It
should be noted that this group-rights strategy does not aim at produc¬
ing a society in which rigid divisions based on nationality are nurtured
or even protected. It is not national cultures but rather class, linguis¬
tic, ethnic, and rehgious memberships, that provide the appropriate
frame of reference for responding to concerns regarding equality among
groups. This approach promises to foster an environment in which, in
the language of consociation theorists, overlapping memberships might
generate political crosspressures on individuals that would encourage
political moderation and stabihty, thus aiding the project of integration
(Lijphart 1977, 10-12).

The goal for the German multicultural society must be an atmosphere
of mutual tolerance, in which no member of society is subordinated
either individually or as a member of a minority group. In pursuing this
goal, it is to be expected that in the short run the integration of the
German migrants will continue to benefit from the maintenance of
strong minority communities, so long as these communities are re¬
spected and not marginalized.®^ Yet, these communities have already, in
an important sense, become “hyphenated” German communities in¬
stead of simply Turkish or Yugoslavian or Greek commimities, and there
is no reason to hinder their further development along these lines. The

1 72 Ethics of Citizenship

assimilation that will take place in the Germany of the future must strive
to match all parts of the society to the whole, not just minority parts to
the dominant part. The result w ill be nonetheless German. Ultimately it
may be that the dominant and minority cultures in Germany will be
brought together more by tlae indiscriminately assimilating forces of
modernity than by adaptation to one another. This possibility, however,
does not alter the fact that a successful integration can occur only in
conjunction wath changes in the structure of society designed to secure
the equality' of political membership that, after all these years, has be¬
come the migrants’ right.

Notes

Introduction

1 The term, popularized in his day by Locke ( 1967), has been revived in current
debates by Hammar (1985, 1990).

2 Citizenship may be pictured as a protective shell built up around a political
community over the years, with suffrage and basic civil and political protections
near the core, and other sorts of rights — lesser political rights, socioeconomic
rights, cultural rights — making up the outer layers. For those potential members
who have overcome the considerable barrier of admission to a country, the outer,
softer layers are easily penetrated, but the resistance becomes ever greater as one
moves toward the center. The last set of rights are attached to a second major
hurdle: naturalization, that is, induction into full membership or citizenship. For
the latecomers, the migrants of the last decades, this last hurdle has in many
countries come to be all but insurmountable (cf. Hammar 1990, 9-26, especially
17).

3 On the ways in which aliens experience themselves as outsiders, see Elias and
Scotson 1965; Korte 1984; andLeggewie 1990, 97-109.

4 Three historical developments in particular help to explain why resident aliens
remain excluded in the political sphere. One involves the normative dynamic
between ideas of political community and national identity in the formation and
organization of modem states. Here the locus classicus is Meinecke 1908; see also
Bmbaker 1989a and 1992. The second is the gradual filling out of citizenship
through the extension of individual rights: basic civil and political rights in the
eighteenth and nineteenth centuries, and social and economic rights in the twen¬
tieth cenmry. The classic account is Marshall 1964; for critiques of Marshall’s
Anglocentrism, see Mann 1987 and Turner 1986, 44-49; for a description of how
migrant workers missed out on certain rights because they were not “present at
the creation” of modern welfare states, see Heisler and Heisler 1990. A third

1 74 Notes to Introduction

development has been a gradual shift in emphasis in the structuring of citizenship
away from duties and tow'ard protections and entitlements; as a consequence of
this shift, migrant workers, who fulfill most of the traditional duties of citizen¬
ship, are still not seen as entitled to this status. See Schuck 1989.

5 A political hypothesis for why the extension of rights to long-term foreign resi¬
dents has stalled at the le\’el of full political and civil rights is that the democratic
rationale for inclusion in the social and economic realms no longer wins out
against self-interest and conserv'atism when the basic mechanism of power and
policc'making is at stake — that, in effect, a balance exists precisely at the point at
which the ox erall exclusion of foreigners might finally be compromised.

6 In their discussions of citizenship, Jurgen Habermas ( 1 994, 1 22-28 ) and, follow¬
ing him, Veit Bader (1995, 213-29, 236) distinguish between moral and ethical
aspects of membership debates. Based on Hegel’s opposition of Moralitat and
Sittlichkeit, this usage is employed to contrast universalistic, liberal arguments
with particularistic stances embodv'ing the substantive standards of a specific
national community regarding the good life and its legal requirements. The dis¬
tinction seems to me misbegotten in this context, implying as it does that beliefs
about indmdual human rights and claims about the normative status of groups
are not only structurally divergent but also fundamentally different in kind. For
an account of morality that integrates universal and particularistic moral claims,
see Michael Walzer’s exposition of “reiterative universalism” (1990). In my
discussion, “ethical” refers simply to “moral” values — be they oriented toward
humanity, groups, or indi\iduals — insofar as they are submitted to reasoned
reflection.

7 For various formulations of the different meanings of citizenship see Walzer 1989,
216; Leca 1990; Shklar 1991, 3-15; Kymlicka and Norman 1994, 353-54; Gun-
steren 1994; and Minogue 1995. The notion of citizenship as a \irtue has received
a host of classical treatments; for some modem views see Arendt 1958, Walzer
1974, Galston 1991, Ignatieff 1995, Maclntvte 1995, and Pocock 1995-

8 I conceive of this designation as referring not only to the definition of citizenship
per se but also to a broad class of ethical issues concerning the constmction of
community, including nationalism, immigration, separatism, genocide, ethnic
cleansing, slavety, suffrage, minority policy, and other related problems.

Chapter One: The Making of Boundaries

1 On the difference between ethnic and national consciousness see Armstrong
1982; and Smith 1986, especially pt. 2.

2 A noteworthy smdy of the finks between religion and German nationalism is
Smith 1995-

Notes to Chapter i 175

3 I use “state society” rather than “political society” precisely for the reason that
many members of German society are politically excluded. “State” on the other
hand encompasses, in addition to political relationships, the complex of social
and economic memberships that are shaped by the relation of “people and gov¬
ernment” (Walzer 1979, 220) in a given territory.

4 As Armstrong points out, because ethnic groups tend to posit their identity
negatively, in opposition to other groups, it is difficult to speak of the essence or
character of the group (1982, 4-6). On this problem, see also Barth 1969; Bell
and Freeman 1974; Glazer and Moynihan 1976; Van den Berghe 1981; and
Bausinger 1986, i4i-59-

5 A number of writers refer to this status of membership as a “new” or “social
citizenship” (e.g., Barbalet 1988, 59-79; Heisler and Heisler 1990; King and
Waldron 1988; Turner 1986). I restrict my usage of “citizenship” to the status of
full membership, however, for reasons that will be made clear.

6 See note 3 above.

7 On this phenomenon see Smith 1986, 2 and pt. 2. Benedict Anderson describes
three further “paradoxes” of nationalism (1983, 14) : ( i ) its objective modernity
(to social scientists) versus its subjective antiquity (to nationalists), (2) its for¬
mal universality versus its irremediable particularity in concrete instances, and
( 3 ) its philosophical poverty versus its political power.

8 Much of the scholarship on nation-states in general, and on German nationalism
in particular, has focused on the contrasting models of state development in
France and Germany. The fundamental distinction concerns the voluntary, politi¬
cal basis of the state in France as opposed to the attributive, ethnocultural basis in
Germany. The state is held as the foundation of the nation in France; the opposite
is the case in Germany. For the seminal work, see Meinecke 1908; see also Kohn
1967, and for a good recent treatment Brubaker 1992. As Brubaker’s nuanced
analysis shows, the two states’ divergent citizenship pohcies in faa reflect dif¬
ferent responses to a shared problem involving the tension between poUtical and
ethnocultural models of organization. The interesting question remains the ex¬
tent to which developments in France caused a reaction against a pohtical de¬
velopment of national consciousness in Germany.

9 For an argument presenting a more complex assessment of particularist and uni-
versalist strains in both Herder and Fichte’s conceptions of the German nation,
see Dumont 1986, 1 1 3-32. In similar fashion, Julia Kristeva subjeas Herder to a
comparison with Montesquieu ( 1993, 27-33, 53-54) •

10 Hegel’s philosophy of the state was, as many have noted, intimately linked with
the Prussian constitutional monarchy, and Hegel himself was opposed to the
dismantling of the Prussian state in order to form a more comprehensive “Ger¬
man” entity. It is nonetheless clear how his thought provided ammunition for

176 Notes to Chapter i

those portras'ing the Germans as a nation in search of a state. A sample from the
Philosophy of Ripht: “A nation does not begin by being a state. The transition from
a family, a horde, a clan, a multitude, etc., to political conditions is the realization
of the Idea in the form of that nation. Without this form, a nation, as an ethical
substance — which is what it is implicidy, lacks the objectivity of possessing in its
own eyes and in the eyes of others, a universal and universally vahd embodiment
in laws, i.e., in determinate thoughts, and as a result it fails to secure recognition
from others” (1967, 218-19).

1 1 See Sheehan 1985, especially 5-8.

12 See Nipperdey 1983, 595-673; Sheehan 1989, 655-71 1.

1 3 The treatment of Poles forms a highly instructive chapter in the history of Ger¬
man membership. Ethnic Poles who were German citizens in virtue of their
inclusion in the boundaries of the new Reich were isolated and subjected to
conchtions, particularly in the industrial Ruhr region, that encouraged the defen¬
sive development of a separate ethnic identity. This development led the govern¬
ment to adopt strict assimilationist policies toward the Poles, including, for exam¬
ple, a ban on speaking Polish — to which Poles responded by holding “silent
assemblies.” Pohsh migrant workers, on the other hand, were excluded to the
point of being forced to return to their homeland for several months each year so
that they would not qualify for residence status. They were pointedly barred from
being able to work or live with the German Poles. Some treatments of this
episode are Broszat 1963 and Hagen 1980.

1 4 This is most arguable in the case of redistribution. A Uvely debate has surrounded
the question of whether it was popular mobilizations or state attempts to co-opt
the worker class that played the leading role in the creation of redistributive
policies. See, for example, Macpherson 1966.

1 5 This step occurred following the repatriation of virtually the entire population of
foreign workers who were denied exit during the war and became forced laborers
for the duration. This tvpe of forced membership set a precedent as well, which
was taken to an extreme under the slav'e labor policies of the Nazi war effort. On
both of these periods see Bade 1984-85, vol. 2; Herbert 1986; Woydt 1987, 30-
51,60-134.

16 See WalzeEs discussion of “countries as national clubs or families” (1983, 40-
42), but see also Veit Bader’s criticism of Walzer on this point. In practice, “states
are not such warm, horizontal Vergemeinschapungen or free and democratic asso¬
ciations, based on consent, but rather cold and vertical institutions, based not on
free entty' but on enforced membership and physical violence” ( 1 995, 2 1 8 ) .

17 Brubaker uses this basic formulation to distinguish between the French and Ger¬
man nation- building processes: he associates the French projea with assimilation
and the German project with ethnonationahst inclusion (1989a). He also, how-

Notes to Chapter I 177

ever, takes pains to emphasize that both countries have to some extent employed
both strategies.

1 8 There is, however, an additional class of ethnic German immigrants and expellees
who form an exception here: once they become residents in Germany, members
of this group — called “status Germans” as opposed to citizens — enjoy virtually
all of the benefits of citizenship, including the franchise, without the necessity of
naturalization. Status Germans possess a statutory right to be naturalized once
they satisfy a set of minimal criteria. See Kanstroom 1993, 186-89.

19 For more on civil rights, see section entitled “The Current Problem.”

20 During the Gulf War, for example, an Iraqi national could be threatened with
expulsion even though he had been resident in Germany for over two decades
{DerTa^esspie^el, February 2, 1991, 15).

2 1 The drafting of this law was accompanied by a debate that is fascinating to read in
light of current discussions of citizenship pohcy. All the basic contemporary posi¬
tions in debates over naturalization policy, voting rights for foreigners, and the
“multicultural society,” and indeed many of the same specific proposals, surfaced
in the course of the deliberations. The Social Democrats, for example, argued for
the rights of economic participants in German society to political representation,
proposed a right to naturahzation for residents after a certain period, and strongly
criticized the “racist” assumptions and the supposition of cultural homogeneity
they saw as underlying the conservative position in favor of strict jus sanguinis
citizenship. See Huber 1987, and the discussion in Hoffmaim 1990, 91-103.

22 As early as 1920 the National Socialists proposed that Jews be placed under
Ausldnder law, that they in effect be denaturalized (Fraenkel 1974, 12), that is,
demoted from the entitled status of citizenship to the tolerated status of foreigner.

23 This stream of immigrants reached a peak of roughly 400,000 in 1 990, prompting
measures aimed at stiffening the procedures whereby potential Aussiedler demon¬
strate their Germanness and gain entrance to German territory. See Kanstroom

1993, 164-67-

24 As of the beginning of 1996; the largest subgroup comprises the just over two
million Turkish nationals {ZeitschriftfurAuslanderrecht undAusldnderpolitik 1997
no. I, 2). Of the remaining foreigners, the substantial number applying for
asylum in Germany has given rise to a major set of pohtical concerns that make up
an important part of the overall “foreigner question.” The liberal political asylum
pohcy extended under article 16 of the German Basic Law was originally a re¬
sponse to the aftermath of World War II, but in the late 1980s it began to attract
increasing numbers of so-called economic refugees from less-developed coun¬
tries. This development led to heated debates between proponents of closed
borders and those in favor of introducing immigration pohcies, and culminated
in a constitutional amendment in 1993 severely restricting access to pohtical

1 78 Notes to Chapter i

asylum. Because the question of asylum presents a distinctive set of problems
having more to do with admissions than with membership, a detailed treatment of it
remains outside the scope of this study. See, however, the brief discussion of
refugees in chapter 5, as well as Germershausen atid Narr 1988; Nuscheler 1988;
and Kalin and Moser 1989.

25 Here a w'ord about terminology is necessary since, in discussions about this
population, the labels themselves have been highly politicized. Due to its associa¬
tion with forced labor policies under the Nazis, the original German term for the
migrants, “'Fremdarbeiter''’ ( alien workers ) , was officially replaced with the oxy-
moronic term ^'Gastarbeiter''’ ( guestw'orkers ) , which gained wide currency in the
1 970s. This term has since fallen out of favor in many circles because of its pointed
implication that the workers are visitors without rights or claims in the host
society. A popular replacement has been the more generous phrase "^ausldndische
Mitbiirpfer” (foreign co-citizens). This formulation is troublesome both to those
w'ho wish to emphasize that the foreign w'orkers are precisely not citizens (Ga-
lanis 1989, 2) and to those who resent being described as the “co-citizens” —
presumably those who go along with the wishes of the citizens proper (Dikmen
1990, 60). The more general term “Auslander’’^ (foreigners) applied to the work¬
ers and their families is argued by many to be inappropriate because it lumps
them together with all other foreign citizens including tourists, when in faa this
population comprises mosdv “7«/aw^r” in the sense of economicallv integrated,
permanent legal residents. Another controversial term is ^''Arbeitsimmi^ranten”
(labor immigrants), w'hich is criticized for suggesting that the migrants have be¬
come immigrants in spite of their refusal in most cases to naturalize. In my treat¬
ment, I use the more neutral notions “migrant w'orkers” {Arbeitsmipfranten ) and
“foreign w'orkers” (auslandische Arbeitnehmer) . I describe the more encompass¬
ing group of these workers and their families as the migrant worker minority or
simply as foreign permanent residents.

26 The forming of minorities is in general a complex reciprocal process invohing the
accentuation and even the promotion of points of difference between the groups
in question. For treatments in the German context see Heckmann 1981; Korte
1982; Schulte 1985; Bausinger 1986; Bukow and Llar)'ora 1988; and Esser and
Friedrichs 1990.

27 See, for example. Bade 1983, 1984-85, and 1987; Schlaffke and Voss 1982; Dohse
1985, 135-358; Herbert 1986, 179-236; VVoydt 1987, 135-50; Ok3’a\aiz 1989;
Casdes 1989, 60-76; and Schoneberg 1993.

28 See especially Dohse 1985; Herbert 1986; and Woydt 1987-

29 The initial w'aves of German returnees, expellees, and refugees represented suc¬
cessive instances of ( im ) migration that have continued on and off for years,
reaching a nev\' peak during the opening of the Eastern Bloc and the collapse of

N otes to Chapter 2 179

the GDR. Ethnic German migrants from the GDK, other East European coun¬
tries, and the Soviet Union form a minority that faces many of the same prob¬
lems of integration as the foreign worker minority. That tliese groups have an
automatic claim to German citizenship has at once eased their integration and
obscured their minority status. See Hoffmann 1990; Liittinger 1989; and Otto
1990.

30 On the general types of problems faced by foreign worker populations in Euro¬
pean countries, see Bethlenfalvy 1987; Frey and Lubinski 1987; Reuter and
Dodenhoeft 1988; Bischoff and Teubner 1991; and Ireland 1994.

3 1 Although this framework emerges from a consideration of the German case, it
seems to me that it might also be fruitfully applied to the treatment of minorities
in a range of other countries including the eu nations, the United States, and
Israel. Assessing its usefulness as a basis for comparative smdy remains, however,
beyond the scope of this study.

32 See, for example, Tajfel 1981.

33 Even though they remain under the discretion of administrators and are hence
not often invoked, the grounds for expulsion under the new Aliens Act of 1991
(arts. 45-47) are disturbingly broad. In addition to those already named, these
grounds include the violation of regulations regarding foreigners, the operation
of an illegal business, endangerment of public health, and in certain cases eligi¬
bility for social aid. In addition, unemployment can lead to the refusal to renew
the residence permit, which in effect is equivalent to expulsion.

34 Although the number of namrahzations has slowly risen in the last years, espe¬
cially in Berlin, it remains the case that a negligible percentage of those migrant
workers eligible for namralization acmally apply. In this category Germany lags
weU behind the other western European countries with guestworker popula¬
tions. See, for example, Brubaker, ed. 1989.

Chapter Two: Membership Debates

1 The correlation between economic hard times and antiforeign sentiment — which
in turn translates readily into exclusionist policies — is widely recognized among
German social scientists. See especially Hoffmann and Even 1984.

2 The reasons for this, I suspect, have much to do with the concepmal gap that
remains between conventional individualistic conceptions of agency and the
crudely mechanistic understanding of collective phenomena still prevalent in
much of the social sciences. Because of this gap persuasive answers to problems
such as that of responsibility for the Holocaust continue to elude us. For interest¬
ing approaches to the problem of social agency from several different directions,
see Merleau-Ponty 1962; Lovibond 1983; and Honneth and Joas 1988.

1 8o Notes to Chapter 2

3 Here I am thinking of politics primarily in terms of lawmaking, government, and
public discourse. My usage does not conflia, however, with a broader conception
of politics that extends, for example, to institutions often considered “private,”
such as the family. See Fraser 1 989 and Benhabib 1 992.

4 One may argue that a categorical rejection of any membership status for non¬
members based on, for example, racial grounds — as under the Nazis — is both
irrational and immoral, without at all denying that such a view is norm-guided
and indeed makes sense on its own terms.

5 Brubaker ( 1989b, 3-6) presents an excellent discussion of the nation-state con¬
ception of citizenship. In his account, this classic, ‘Vestigial” notion of citizenship
combines six partially discordant ideals: “Membership . . . should be egalitarian,
sacred, national, democratic, unique, and socially consequential” (3). Various
aspects of this ideal are attacked by Foucault ( 1988) and Waters ( 1989).

6 Cf. Baubock 1994: “A comprehensive analysis of citizenship has to take into
account three different aspects: ( i ) the rights and obligations attributed to cit¬
izens as members of a polity, (2) the determination of individual membership,
and ( 3 ) the nature and shape of the polity itself” (vii) .

7 That the difference is generally in practice merely one of degree is pointed out by
Daniel Kanstroom ( 1993, 202-204).

8 Klaus Bade, one of the leading German researchers of migration, has proposed
a typology' that makes some sense of the disagreement over Germany’s status
as an immigration country' (Bade 1990). He distinguishes between the experi¬
ence of immigration as a social and cultural process and a self-conscious pol¬
icy allowing immigration, and charaaerizes West Germany as, paradoxically,
has'ing an “immigration situation” without being a country of immigration
{^Einwanderunpfs-situation ohne Einwanderunyjsland”) . Given this distinction the
question becomes. To what extent should government policy take account of the
changed realities of immigration? As Bade points out, in the nett’ immigration
countries of western Europe, a policy of expanding and div'ersifying the citizenry
could never take on the formative role it took in classical immigration societies
such as Australia or the United States. Rather, new countries of immigration may
reaa formally, in that they change their orientation to accept new immigrants; or
informally, in that they persist in denying their status as countries of immigration
while at the same time making possible the legal integration of already present
immigrants by easing naturalization requirements. The central issue in the debate
over immigration policy, then, is whether or not Germany is to develop into an
informal new country of immigration.

9 A rather different understanding of the tw'o is that of Gunter Endruweit, who
understands assimilation as a process in which “the members of a cultural system

N otes to Chapter 2 1 8 1

essentially conform to the patterns within a different cultural system without
internalizing them.” Integration may result “when they internalize the new cul¬
ture, thereby removing themselves from their previous cultural system, and when
the target society displays a readiness to accept them” (quoted in Bischoff and
Teubner 1991, 99).

10 On this point see Esser ( 1983, 28-29), who in like fashion describes how various
political orientations may oppose assimilation or pluralism.

11 On this debate see, for example, Esser 1983; Miksch 1983; Schulte 1990; Leg-
gewie 1990; Geissler 1990, chap. 5; Tsiakalos 1990; Hofmann 1990; Schmid 1990;
Hoffmann 1990; Klein 1992; Faul 1993; and Jansen and Baringhorst 1994.

12 Much has been written, for example, regarding the existence of a “guestworker
literature.” See Khmt 1989.

1 3 The sometimes violent extension to German soil of Turkish political conflicts,
especially those involving the Kurdish Workers Party (pkk), has been cited in
support of this view.

14 This was soon after the far right Repubhkaner party attained stunning successes
in votes for the Berlin and Hessian assemblies and for the European Parhament.
At this point, the percentage of Germans in favor of reducing the foreign popula¬
tion was measured at 57.8 percent {ZARAktuell, i November 1988, 2) .

15 In Europe as a whole, the notion of voting rights for foreigners at the local level
has made considerable progress since the early 1970s. Prior to the introduaion of
reciprocity of local voting rights in the European Union, foreigners enjoyed some
form of voting rights in the following countries: Denmark, Ireland, the Nether¬
lands, Portugal, Spain, the U.K. ( for Commonwealth and Irish citizens ) , Finland,
Iceland, Norway, Sweden, and in the cantons of Jura and Neuchatel only in Swit¬
zerland (Sieveking et al. 1989) . The German Democratic Repubhc introduced —
with questionable motives — voting rights for foreigners shortly before German
reunification. In the Federal Republic, foreigners have been extended political
representation in the form of advisory committees to local governments. These
committees, which were established primarily in two waves from 1 972 to 1 975 and
from 1980 to 1981, take a great variety of forms (Federal Commissioner 1988).
None of them, however, offers the opportunity to take part in making decisions,
and for this reason they have been strongly criticized as a sop for foreigners. Practi¬
cally the only legal opportunity for foreigners to participate directly in local gov¬
ernment is through their appointment to government committees as experts. For
a thorough treatment, see Berlin Institute 1987-

16 For more on this point, see Bernsdorff 1986.

1 7 Opponents of voting rights for foreigners, it should be noted, generally concede
that these arguments lose a great deal of their force at the communal level.

1 82 Notes to Chapter 2

18 A 1994 poll showed that among Turkish and Yugoslavian migrants, 83 percent
and 67 percent respectively held local s'oting rights to be “important” or “very
important” (hiformationsdienn zur Auslanderarbeit 1995 no. 1:12).

19 More specifically, they would tend slightly toward greater support for the Social
Democrats — a projection readily accounted for by their overrepresentation in the
working class. This fact is likely an important factor in the determined opposition
of the Christian Union parties to voting rights for foreigners.

20 They claim that the vote for foreigners may be established without violating the
German Basic Law or any of the individual state constitutions apart from those of
Bavaria and the Rhineland Palatinate. See, for example. Bucking 1 992, 1 2 1 .

21 Examples are the freedoms of assembly (art. 8) and association (art. 9), and the
right to resistance (art. 20, par. 4).

22 Here, it should be noted, a double standard is applied. Those who are born
German citizens are not required at any time to demonstrate their loyalty to
the state. Non-Germans who naturalize must, however, perform feats demon¬
strating a certain level of assimilation, and in addition renounce all other national
loyalties.

23 Exceptions to this rule have traditionally held for cases in which the release from
citizenship is impossible, arbitrarily refused, or attached to inordinate difficulties
for the applicant.

24 As of 1985, for example, one of every 600 Turks with ten years’ residence in
Germany had apphed for citizenship (Hailbronner 1989a, 70). Since measures
easing the eligibility requirements for children and residents of at least fifteen
years were adopted in 1990, the number of applications has increased somewhat,
especially in Berhn, where a liberal naturalization program has been pursued.

25 These naturalization proposals have been accompanied by other projxjsals seek¬
ing an improved status for migrants independent of German citizenship. Thus,
for example, the Greens have suggested adopting a “setders law,” which would
extend full legal and political equality' to residents of five y’ears or more, while the
government has concentrated on creating greater security for foreigners in the
sphere of residence and work permits. For a full discussion, see Bemsdorff 1986.

26 See, for example, the Bundestag debate of February' 9, 1995 over the SPO/Green
proposal to accept dual citizenship.

27 According to the Federal Commissioner for the Integration of Foreign Workers
and Their Family Members, one-third of all discretionary' naturalizations in 1993
involved acceptance of multiple citizenship (“Bimdestag debattiert fiber Staats-
icngchbrigVsitr Zeitschrift fiir Ausldnderrecht und AusUinderpolitik 1995 no. 2, 96).

28 This Hew has been most influentially formulated by Dieter Oberndorfer ( 1 990 ) .
It is echoed in the analy'ses of Hoffmann (1990), Geissler (1990), Hammar
( 1990), Habermas ( 1995) and many others writing on this topic.

Notes to Chapter 3 183

29 The phrase ^''Verfassungspatriotismus ” was coined by Dolf Sternberger ( 1 990 ) . For
criticisms of the use of the term by Habermas and other leftist thinkers, see Sutor
1995-

30 On this point Oberndbrfer differs from Brubaker over the question of France.
Brubaker (1992) sees the developments in France as the estabhshment of
a republican variety of nation (also tempered by ethnonational influences),
whereas Oberndorfer (1990) sees the rise of Napoleon as the demise of French
republicanism.

31 My analysis has much in common with Jurgen Fijalkowski’s (1991b, 243-46) . He
presents a typology of four basic positions that he calls “regressive ethnona-
tionalism,” “nation-state conservatism,” “hberal multiculturalism,” and “rigorous
egahtarianism.”

32 Naturally, individual members of these parties vary widely in their views.

33 More specifically it is the Christian Union parties that have implemented this
view, in many respects in spite of objections from their coahtion partner, the fdp.

Chapter Three: Political Anthropologies

1 It is necessary to distinguish between moral arguments and moral preferences in
regard to membership policy. Nonreflective preferences on the part of voters and
policymakers imdoubtedly play a major, perhaps decisive role in shaping mem¬
bership. Here, however, I am interested in arguments, since it is only reasoned
claims — including the claim that political membership should be determined
according to the individual preferences of full members — that offer the potential
for criticism and revision inherent in an ethical view.

2 For example, Vattel, who in most ways conformed to a consent-based approach,
was one with the great common-law writer Blackstone in advancing a strict jus
sanguinis criterion for political membership (see Whelan 1981, 645-48; Black-
stone 1983; Vattel 1805).

3 Machiavelli and Jefferson may both insightfully be understood as republicans, but
this alone will not take us far toward imderstanding their views on membership in
sixteenth-century Florence or in the fledgling United States.

4 Rousseau, for example, had no trouble embracing all three in his political
philosophy.

5 The three membership images discussed here bear some resemblance to the ana¬
logues of the club, the neighborhood, and the family used by Michael Walzer in
his discussion of membership ( 1983, chap. 2). Broadly speaking, the communal
self corresponds to the family member, the universal self to the neighbor, and
the self-constituting self to the club member. See my discussion of Walzer in
chapter 4.

1 84 Notes to Chapter 3

6 Tlius, one could argue, as political membership becomes more and more “trans¬
national” (Baubdck 1994), its normative basis becomes increasingly universal in
nature.

7 This is a question broached by Charles Beitz in the context of a discussion of
“Eligibility, Boundaries, and Nationality” ( i979, 105-15). In a manner similar to
the treatment here of contraa, communal sovereignty, and natural law, Beitz
considers freedom of association, common cultural characteristics, and consider¬
ations of justice as possible normative grounds for self-determination, before
arguing for the last. However, his concern, it should be noted, is with grounds for
political separatism, not inclusion, and his argument is framed accordingly.

8 This is the standard term in international documents.

9 This argument might for example be made in connection with the Serbian minor¬
ity' in eastern Germany, a group that continues to try to preserve its own language
and culture.

10 For a list of linguistic, ethnic, racial, religious, and tribal minorities in 124 coun¬
tries, see Sigler 1983, 205-13.

1 1 This is John Stuart Mill’s argument in Considerations on Representative Govern¬
ment; he writes of nations, but the idea is assimilable to my use of culture ( 1978,
chap. 16). See also Beitz 1979, 1 1 2- 1 4.

12 The culture position therefore relies on the notion that cultural attachments may
be altered at will by indiv'iduals. Yael Tamir (1993) has argued that this possibility
may serv'e as the basis for a “liberal nationalism.” She seems to me, however, to
underestimate the existential problems involved in genuinely switching cultures.
Will Ky'mlicka (1995, 84-93) proc'ides a rather more nuanced discussion of the
“difficulty’ of leac'ing one’s culture”; yet, by framing the issue in terms of individ¬
ual autonomy and “cultural membership” he nonetheless fails to do justice to the
extent to w'hich the agent — the “self” — is constituted by, and hence analy'tically
inseparable from, his or her cultural context.

13 In other city-states such as Sparta, citizenship was also further reserv’ed for the
landed, nonworking class (Wood 1988).

14 The distinction between citizenship and other statuses was brought home in the
area of homicide law, where the court in which a citizen might be tried, as well as
his penalty, depended on whether or not his victim was an Athenian (Manville
1990, 10-13; Sinclair 1988).

15 A classic argument in favor of this view is made by Aristotle in book 3, chap. 1 3 of
Politics (1941); some other noted proponents include Mill (1978), Schmitt
( 1970), and Aaon (1985).

16 On differences here between admissions and the treatment of residents, see
Carens 1987.

17 Although this is not a problem in the (West) German case, the culture and

Notes to Chapter 3 185

closure positions’ privileging of communal structures of moral authority over
universal or individual rights may also lead to a denial of the right of citizens to
emigrate.

18 This is not to say that states organized according to the culture view may not
respect and even constitutionally recognize the vahdity of other human rights
within their territory. But where this occurs it is with the tacit understanding that
the nation determines which rights hold and which do not.

19 An argument advancing the choice position on these grounds is made by Elsa
Chaney (1981). Chaney emphasizes that a diversified system of political member¬
ship tends to work in favor of economically disadvantaged populations by mak¬
ing it possible for migrant workers to pursue opportunities without being con¬
strained by all-or-nothing citizenship policies. It also allows migrants to maintain
formal ties with the countries they have left, which may be important for reasons
having to do with property, inheritance, and so on. As her argument notes, many
long-term residents are migrant workers who intend eventually to return to their
country of origin. On the choice model, this fimited involvement in their home
country need not rule out hmited political representation during their stay.

20 Walzer makes the point that countries, hke clubs, have the right to regulate
admissions but not to bar withdrawals ( 1983, 40 ) . See also chapter 4.

21 Riley shows that major contemporary contractarian arguments tend to avoid the
philosophical problem of the link between will and pohtical legitimacy. He con¬
cludes, rather optimistically, that a Kantian metaphysics of morals can provide the
missing fink for theories such as those put forward by Walzer, John Rawls, and
Robert Paul Wolff.

22 This is a crucial problem with the notion of mutual consent advanced by Schuck
and Smith ( 1985) . Another difficulty with their argument has to do with how the
consent of a nation is determined. See my chscussion of their view in chapter 4.

23 Habermas, whose political theory largely conforms to the coexistence position,
notes the element of contingency involved in the constitution of state popula¬
tions, but in my view fails to take adequate note of its moral significance ( 1994,
126).

24 An early proponent of this tradition was the Spanish Dominican Francisco de
Vitoria, who wrote in 1532 that

if children of any Spaniard be born [in the New World] and they wish to
acquire citizenship, it seems they can not be barred either from citizenship or
from the advantages enjoyed by other citizens — I refer to the case where the
parents had their domicile there. The proof of this is furnished by the rule of
the law of nations. . . . Aye, and if there be any persons who wish to acquire a
domicile in some state of the Inchans, as by marriage or in virtue of any other
fact whereby foreigners are wont to become citizens, they can not be im-

1 86 Notes to Chapter 3

pcdcd any more than others, and consequently they enjoy the privileges of
citizens just as others do, provided they also submit to the burdens to which
others submit. (1917, 153-54)

25 The shift from a natural law paradigm to one of natural rights was a complicated
one; on this topic see Tuck 1979 and Haakonssen 1996.

26 For his part, Kant identified the essential criteria for citizenship as simply individ¬
ual autonomy and self-sufficiency: “The only qualification required by a citizen
(apart, of course, from being an adult male) is that he must be his own master
(sui juris), and must have some property' (which can include any skill, trade, fine
art or science ) to support himself” ( 1 99 1 , 78 ) .

27 This observ'ation supposes a world in which citizenship policies are not unified. In
a world in which all citizenships were determined on the coexistence model, the
question in regard to multiple citizenship would be whether one could be inte¬
grated enough in more than one polity to justify multiple political representation.

28 Political borders need not be taken entirely for granted; certainly cases will exist in
which they are contested, with good reason. Here, historical arguments will
undoubtedly play a central role.

29 Habermas ( 1995) attempts to counter such criticisms by arguing, first, that the
historical connection between cultural community (ethnos) and demcKratic self-
determination (demos) is accidental and not conceptual in nature; and second,
that a communitarian conception of citizenship, with its assumption of a self-
determining, ethically homogeneous polity, is in any case no longer applicable to
modem conditions. Based on these claims, he defends the view that states — and a
unified Europe — are morally required to disassociate ethnocultural identities
from the univ'ersalistic political culture that properly forms the basis of citizen¬
ship. In my view, he is rather sanguine about both the theoretical and practical
prosperts for separating nationalism and republicanism.

30 For arguments distinguishing political participation and other core human rights
from secondary rights, see Shue 1980 and HoUenbach 1979-

31 Shue argues for a right to “genuine influence upon the fundamental choices
among the social institutions and the social policies that control security and
subsistence and, where the person is directly affected, genuine influence upon the
operation of institutions and the implementation of policy” ( 1980, 71 )• See also
Lichtenberg 1981.

32 For sev'eral related criticisms of the abstract charaaer of some formulations of
human rights, see Waldron 1987, 166-74.

33 The point of my criticism here is that the idea of an individual right to national
citizenship is a logically and praaically flawed constmetion. This does not mean
that a more broadly conceiv'ed human right to political representation in general
may not serv'e as an effectiv'e moral ideal in national political discourse.

N otes to Chapter 4 187

Chapter Four: Inequality, Nondomination, and Human Rights

1 As I shall argue in this chapter, the shape of just membership policies may also be
affected by the requirements of a commitment to democracy (that is, to a positive
role for political members in the governance of the community, as opposed to a
status as a mere subject) as well as by contexmal factors such as the nature and size
of modern states and the extent of global interdependence.

2 I take “harm” here to refer in a general way to damage to personal interests
occasioned through human agency. For a discussion of some of the philosophical
issues surrounding different varieties of harm, see Feinberg 1980, 45-68.

3 This general claim could perhaps be made about any political theory, as I sug¬
gested earlier. As Ian Shapiro notes, “substantive conceptions of the good cannot
be avoided in arguments of right and justice” (1986, 304). John Finnis goes
further in writing of an “interdependence between the project of describing hu¬
man affairs by way of theory and the project of evaluating human options with a
view, at least remotely, to acting reasonably and well” (1980, 18) .

4 See Walzer 1970 and 1977.

5 Here Walzer seeks to distinguish his perspective from that of Bernard Williams
( 1973 ) . Walzer interprets Williams as deriving criteria of justice from the essential
meanings of goods, while he (Walzer) wishes to emphasize the historical and
social nature of such meanings (9). I suspea Williams would be reluctant to
subscribe to this distinction in connection with his argument.

6 This claim comes as the last in a set of six propositions summarizing Walzer’s
“theory of goods” (7-10). The first five points are descriptive in nature ; the sixth
takes the form of an imperative: “When meanings are distinct, distributions must
be autonomous” (10).

7 My point here is supported by Walzer’s extension of the notion of dominance to
the act of reshaping the meanings of social goods ( i o- 1 1 ) . Meanings may evolve
on their own, but it is illicit to change them artificially. This claim, however, raises
problems, to which I will return, concerning the role of politics in shaping shared
meanings. Walzer, it should also be noted, allows that in some societies — his
example is the Indian caste system — the differentiation of shared meanings of
social goods may not be very great, in which case the dominance of a single value
(e.g., rimal purity) need not be an injustice.

8 That Walzer recognizes his argument as an attempt to derive a political theory
from modest claims about human nature is suggested in his introduction. His
theory assumes, he writes, “our recognition of one another as human beings,
members of the same species. . . . We are very different, and we are also manifestly
alike. Now, what (complex) social arrangements follow from the difference and
the likeness.!’” (xii). See also his attempt to develop a pluralist notion of moral

1 8 8 N otes to Chapter 4

universality distinct from traditional conceptions of a single global morality
(1990).

9 In Thick and Thin ( 1994), in the context of distinguishing between the universal,
“minimalist,” and particular, “maximalist,” aspects of his political theory, Walzer
continues to insist that his account “does not requite or ‘rest on’ a theory of
human nature. But there is a picture of the self, nothing so grand as a theory, that
is consistent with ‘complex equality”’ (x-xi).

1 0 For example, Walzer at different times compares political communities to univer¬
sities, families (urban. Western), neighborhoods, and clubs; he also develops
comparisons between immigrants and children, and guestworkers and live-in
servants.

11 A much-commented-upon feature of WalzeFs work is his frequent reference to
the beliefs of an unspecified “us.” As Walzer explains in Just and Unjust Wars
(1977, especially xiv-xv, 1 1 - 20), his use of the first person plural reflects his belief
that his readers share a common moral experience, that they indeed inhabit one
moral world. Elsewhere Walzer has made it clear that he believes this experience
to be more or less universal (1994a) .

12 This use of terms is somewhat problematic insofar as it presumes the finished
product of membership policies, the state to which rationales are “internal” and
“external.” What he means by “external” criteria are criteria that are logically prior
to and independent of specific political communities; they are in short, I argue,
universal criteria.

1 3 Cf. Walzer 1 994b, 8 3 :“ [ O ] ur common humanity will never make us members of a
single universal tribe. The crucial commonality of the human race is particularism.”

14 It is significant that in Germany, as we saw earlier, this principle has been recog¬
nized to extend to family members of guestworkers regardless of their formal
membership in the political community.

1 5 It should be noted that this implication of WalzeFs theory fits well with his overall
concern with shared social meanings. It would obviously be difficult to separate
the roles of citizens and “denizens” in establishing a community’s norms about
the distribution of memberships. It would be easier to claim that all residents are
implicated in a community’s standards for admission and exclusion, thereby tac¬
itly acknowledging the membership of all residents.

16 WalzeFs observations on this issue are difficult to apply to today’s noncitizen
minorities for two reasons. First, his focus on economic reasons leaves out of
consideration a not insignificant number of student immigrants. Second, the
situation of the guestworker minorities has changed in significant legal and moral
respects since the situation in the early 1970s sketched by Walzer. There are many
more ways in which guestworkers who have settled in industrial societies are
acknowledged as members; yet, their undiminished political exclusion is now

Notes to Chapter 4 189

portrayed not as a structural state of affairs, but as a state chosen by them. And it is
true; by now, in many countries, guestworkers have become “potential citizens,”
in however thin a sense.

17 It is perhaps the case that for Walzer, the nature of political justice in regard to
citizenship is determined by the meaning of “citizen,” which he seems to view as
an intrinsically democratic concept. Thus, he argues that in an oligarchy, even
citizens are really simply resident ahens (61 ) .

18 The reference to fairness here, it could be argued, enlists yet another external
normative criterion in support of Walzer’s argument.

19 This notion has been given a theoretical exposition in the work of Georges Sorel
(see Vernon 1986). For an account of its contemporary influence see Wihtol de
Wenden 1987.

20 For a discussion of the view that “it is men-within-the-normative-structure be¬
tween whom justice must be done,” see Taylor 1985, 294-96.

21 Herman van Gunsteren, in an attempt to compensate for what he sees as the
overly global logic of Walzer’s position on membership, proposes a list of require¬
ments for admission to “local” citizenship that includes, in addition to economic
self-sufficiency and a general capacity for political judgment, the wiU and capacity
to identify culturally with the society in question. He accepts, however, that what
this may mean in practice can not be determined theoretically, and further allows
that ample discretion must be practiced in any case ( 1988, 736-37) .

22 The phrase is Hannah Arendfs ( 1 967, 296 ) .

23 In her discussion of the links between statelessness and vulnerability to human
rights violations, Arendt provides a powerful argument regarding the unique
significance of political membership: “Something much more fundamental than
freedom and justice, which are the rights of citizens, is at stake when belonging to
the community into which one is born is no longer a matter of course. . . . [The
stateless] are deprived, not of the right to freedom, but of the right to action. . . .
Man, it turns out, can lose all so-called Rights of Man without losing his essential
quality as man, his human dignity. Only the loss of a polity itself expels him from
humanity” (1967, 296-97).

24 The view that human rights are legitimate claims in virtue of their requirement by
a foundational standard of human dignity is embraced in international docu¬
ments including the UN’s Universal Declaration of Hmnan Rights and, in a more
fully articiflated form, in the documents of the Catholic social tradition as well as
in a great variety of other authors’ works. These sources differ in their accounts of
the basis of human dignity, identifying it variously as our theological status as
children of God, or as our existence as self- actualizing moral beings, or simply as
our given human nature. What unites these views is that they hold i ) that human
dignity requires that persons be treated in certain sorts of ways and 2) that this

190 Notes to Chapter 4

gi\'es rise to entitlements to these sorts of treatment in the form of human rights.
It is worth noting here that the reliance on a language of rights is a major reason
why human rights have been criticized as a Western notion imposed on the rest of
the world (see, e.g., PolUs and Schwab i979). In response to this complaint, one
defender of the dignity view. Jack Donnelly, argues that while the problem of how
to protect dignity is universal and a human rights approach is only one strategy —
a liberal strategy — among many possible alternatives, given the contemporary
global prevalence of liberal political and social institutions and market economies,
it is clearly the best strategy available (1989, 17-27).

25 In this view, inspired by the philosophy of Kant, the essence of human being is
found in the capacity to act intentionally and rationally. The nature of human
beings as artors justifies the claim of each individual to the conditions necessary
for human action, which include above all freedom and well-being. As Alan
Gewirth develops this argument, it is the human capacity for action that grounds
the notions of both dignitv' and rights ( 1982, 28-30). A related approach relies
upon Kant’s categorical imperative (1964) in establishing a basic principle of
respect for persons. See, for example, Donagan 1993.

26 This, ultimately, is the thrust of John Rawls’s considerably nuanced “construc¬
tivist” view of human rights ( 1 993 ) . In his self-consciously modest account, a set
of universally applicable rights is required by a “liberal conception of justice” he
believes should be acceptable to all weU-ordered societies, liberal or not. This
conception of justice is in turn the product of a “reasonable procedure” in which
rational agents, employing the original position and the veil of ignorance, agree
on common principles first in a (liberal) domestic context, then in an interna¬
tional context.

27 In this Aristotelian approach, a full-blown account of human potentialities pro¬
vides the normatis’e linchpin for explaining what human beings are entitled to.
John Finnis, for example, provides a fixed list of philosophically and empirically
demonstrable goods that are held to be the “conditions and principles of practical
right-mindedness, of good and proper order among men and in individual con¬
duct” ( 1 980, 1 8, 59-99 ) . The fact that these goods are each required by the end of
human flourishing is what makes them human rights and, indeed, duties. This
approach thus moves from a universal teleological conception of human well¬
being to sjaecific claims of right.

28 This strategy, advanced most notably by Christian Bay ( 1982), understands hu¬
man rights as justified claims to the satisfartion of human needs, as distinguished
from wants.

29 Ronald Caret, in his work on group rights, identifies existence itself — whether
structured individually, in groups, or in society — as the essence of human being
and the basis of legitimate claims of right. Drawing on Sartre’s philosophy, he

Notes to Chapter 4 1 9 1

claims that existence provides the “utterly primitive goodmaking element” for
basic human goods, and dtereby requires respect for these goods in the form of
rights (1983, especially 1065-75).

30 For Da\ad Pacini, self-preservation, the fundamental drive to maintain one’s per-
sonhood, is the governing motif in the modern individualistic concern with
rights, including human rights (1987, 67-82) .

31 Jean-Fran^ois Lyotard argues that human rights depend upon the recognition of
the other in oneself, of a “likeness that . . . follows from the difference of each from
each,” so that to harm one person is to harm the entire human community. This
recognition is made possible through the dynamics of language (1993, 1 36-47) .

32 For a somewhat overstated critique of this tendency in moral theory, see Rorty
1993-

33 Cf. Jeffrey Reiman’s discussion of “justice as reason’s answer to subjugation”
(1990, 1-82).

34 For a historical analysis of the effects of injustice understood as systematic viola¬
tions of “natural morahty,” see Moore 1978, especially chapters 2 and 3. On the
connection between agency and harm, injury and torture, see Scarry 1985.

35 Cf. Judith Shklatis observation that “it is not remembered [in pohtical theory]
that the history and present function of rights is the expression of personal out¬
rage at injustice and cruelty” (1986, 24). See also Bryan Turner’s attempt to
provide a philosophical anthropology that interprets rights as a sympathetic re¬
sponse to the perception of the universahty of human frailty: “It is from a collec¬
tively held recognition of individual frailty that rights as a system of mutual
proteaion gain their emotive force” (1993, 186) .

36 The thesis that the experience of domination is a more important determinant of
the legitimacy of human rights claims than substantive theories of human rights
helps explain why, in the international institutionahzation of human rights, con¬
siderable agreement exists on a general hst of human rights without a comparable
consensus regarding the underlying nature of human beings. Cf. Maritain (1951,
76- 107), who, in noting that “men mutually opposed in their theoretical concep¬
tions can come to a merely practical agreement regarding a hst of human rights,”
comments, “This fact merely proves that systems of moral philosophy are the
product of intellectual reflection on ethical data that precede and control them
and reveal a very comphcated type of geology of the conscience, in which the
natural work of spontaneous, pre-scientific, and pre-philosophical reason is at
every moment conchtioned by the acquisitions, the servitudes, the structure and
evolution of the social group” ( 80 ) .

37 Walzer, discussing egahtarianism, writes, “What is at stake is the abUity of a group
of people to dominate their fellows. It’s not the faa that there are rich and poor
that generates egahtarian politics but the faa that the rich ‘grind the faces of the

1 92 Notes to Chapter 4

poor’ impose their poverty upon them, command their deferential behavior”
(xii-xiii).

38 In defining domination, I want to be careful not to imply too much about the sort
of agency required on the part of dominators. Those who dominate may do so in
a great variety of ways: individually and intentionally, or collectively and tacidy,
with greater or lesser degrees of self-consciousness. Those who suffer the depriva¬
tions of housing or subsistence enforced through an inequitable economic order,
for example, are dominated by a system imposed, maintained, and exploited by
others.

39 By “good” I mean here simply something that is beneficial to the person in
question. “Important goods” are those goods that bear heavily and perceptibly
on the well-being of persons, whether or not they are explicidy recognized to do
so. They may include health or mobiUty or food or housing or a long list of other
things; what they are precisely does not bear on my description of domination.

40 There are many authors, especially Marxists and feminists, who provide analyses
of domination and the related concepts of oppression, repression, subordination,
subjugation, exploitation, discrimination, alienation, victimization, objectifica¬
tion, and exclusion, not to mention opposing concepts such as liberation and
emancipation. I eschew speaking of oppression both because the term tends to be
applied to diffuse, all-encompassing phenomena and because it often carries
structural connotations that undermine a sense of the human agency involved.
Exploitation, on the other hand, implies a focused sort of exchange among agents
that constitutes only a subclass of the broader category of domination. Subor¬
dination and discrimination have been giv'en fixed meanings above (chapter i).
For various distinctions among types of power relations see, for example, Weil
1958; Arendt 1967; Foucault 1979; Bay 1981; Brittan and Ma\Tiard 1984; Rama-
zanoglu 1989; Bartkv' 1990; Scott 1990; and Young 1990.

41 The question of whether persons may experience domination without being
conscious of it is a crucial one. Claims of false consciousness, I would think,
would need to be buttressed by a demonstration that what persons are being
deprived of is in faa a good that is at some level important to them. Thus, for
example, in the example of “happy slaves” one would need to make the case that
the good of hberty, of which they were deprived, was in faa of deep importance
to them. On the other hand, it is an oft-noted feature of domination that it may
tend to induce its victims to believe that they deserve or are even responsible for
their own subordination. For an analysis of this process based on Frantz Fanon’s
phenomenology of “psychic afienation,” see Bartky 1990, 22-32.

42 For a discussion of the difference between misfortune and injustice, see Shklar
1990, 51-82.

43 A strong collection of essays on this topic may be found in Fischer 1986. An

N otes to Chapter 4 193

interesting “pragmatic” conception of responsibility that explicitly attends to the
significance of communal boundaries is developed by Marion Smiley (1992). A
persuasive argument for an expansion of conventional notions of responsibility to
include more than what persons directly cause and to recognize shared respon¬
sibility is provided by May 1992. On the question of collective responsibility, see
also Arendt 1987; the essays in May and Hoffman 1991; and Lucas 1993, 75-85.

44 My approach bears some similarities to the “rational intuitionist” understanding
of human rights proposed by David Little (1993). Little sees human rights as
responses to the transparent wrongness of acts that impose arbitrary suffering.
This he iUustrates by employing William Gass’s “Case of the Obliging Stranger”:
the wrongness of overbaking a person can be accounted for not by any theoretical
considerations, but only by pointing to the circumstances constituting the aa —
“Well, I put this fellow in an oven, you see. The oven was on, don’t you know”
( 78 ) . Although Little’s analysis focuses on torture, he imphes that such acts may
include a variety of forms of social, political, and culmral domination ( 86) .

45 Although I employ the admittedly deontological language of “right” and “wrong”
here, the point does not seem to me to exclude teleological interpretations.

46 This I take to be the core sense of rights as referred to in contemporary moral
philosophical discussions. See, for example, Gewirth 1989, 98; Finnis 1980, 205;
and Cranston 1989, 19.

47 Cf. the accounts of Ian Shapiro (1986, 14-19) and Alan Gewirth (1978,65). An
indispensable source for distinaions among different sorts of rights is Holifeld
1919.

48 A helpful jurisprudential source on both the hermeneutics of law and the relation
between legal and moral rights is Cover 1983.

49 Support for this observation is provided by the work of the organization Amnesty
International, which devotes itself to preventing human rights abuses and aiding
their victims. In order to provide itself with the strongest possible moral appeal.
Amnesty confines its efforts precisely to the sort of abuses that most clearly bear
the character of domination: torture, pohtical persecution, and unlawful im¬
prisonment. The international success of this strategy, one could argue, testifies to
the centrality of domination in the strucmre of human rights.

50 The most influential account of basic rights is Shue 1980. A discussion of several
basic rights theories may be found in Donnelly 1989, 37-45.

51 There is an obvious ambiguity involved in speaking simultaneously of human
bein£is and human bein^ in this context. It should be clear, however, that the
connection between the two terms is very close: With human beings I mean, quite
simply, “people” in general, while with human bein£i I am referring to what might
correspondingly be called our “peopleness” — that is, that which constimtes us as
people. Neither term necessarily connotes individuality.

1 94 Notes to Chapter 4

52 As an example, suppose that a religious group experiences domination in the
form of an outriglit ban within a given political context. My contention is that
because religion as a human good is a communal phenomenon, the appropriate
human rights claim would take as its subject the religious community itself, not its
indic idual members. An individually held right to religious belief does not neces¬
sarily secure the well-being of a religious community, which may require collec¬
tive protections or even aaive support in order to surs’ive.

53 On the question of how groups may be harmed, see May 1987, 135-55.

54 The assumption that human rights entail only individual subjects, though rarely
supported, is widely shared among liberal theorists. Will Kymlicka, for example,
speaks of “traditional human rights standards” (that is, inditidual rights) as
distinct from a supplementarv' set of “minority rights” ( 1995, 3-6). In arguing
for a single theory' of justice encompassing both of these categories, however,
K\'mlicka implicitly recognizes their common normative basis and structure. For
a criticism of the tendency' to separate individual rights from respea for cultural
groups, see Habermas 1994, 109-16.

55 Here the difficult problem of conflicts between different levels of human beings
or human goods arises. WTiat human right prevails when the surv’ival of a group
good, say a language, is perceived as in conflict either with another group good,
such as the functioning of the national economy, or with individual freedoms? I
do not have a general answer to this problem, although I suspea that two impor¬
tant considerations will always be the extent of the domination (is sun'ival or
merely self-determination at stake? ) and the relative importance of the gcxxls to
the people in question (is the moral significance for a minority community of a
shared linguistic heritage comparable to the interest of society at large in linguis¬
tic homogeneity or to that of individuals in being able to choose in which lan¬
guage they express themselves and are educated?). Cf Caret’s treatment (1983),
and, on the Quebecois, the essays in Baker 1994, and Ky'mlicka 1995.

56 Thus, rights formulated as prohibitions against forms of domination such as
slavery' and torture tend to be stronger than rights formulated positively. As John
Finnis shows, this is reflected in international human rights documents, which
tend to treat rights of the first sort (“No one shall be . . .”) as unqualified and
rights of the second sort (“Every'one has the right to . . .”) as generally subject to
limitations imposed, for example, by the common good ( 1 980, 2 1 o- 1 8 ) .

57 I leave aside the question of the extent to which, in nondemocratic states, citizens
who have no access to political participation are dominated. It seems to me that
this will often be the case. Here, however, I wish to focus on what I take to be a
morally relevant difference between being subject to a group’s policies as a mem¬
ber and being subject as a nonmember.

58 The case that “people who live in a state for any significant period of time ... are

N otes to Chapter 4 195

morally entitled to citizenship” is made by Joseph Carens (1989, 46). Although
his argument is ostensibly based on hberal democratic principles of consent and
toleration, these values in faa only qualify his central claim that, over time, immi¬
grants establish a relationship with the society in which they live that makes it
simply wrong to exclude them. This stance seems to me consonant with the
human rights perspective advanced here. See also Rainer Baubock’s defense of the
proposition that “human rights are the cornerstone as well as the most extended
apphcation of a transnational conception of citizenship” (1994, 240) .

59 The iRs’s distinction, for tax purposes, between “temporary” and “indefinite”
assignments in another country seems to me to be as good a guideline as any:
Residence of over one year is presumed to be indefinite, although this presump¬
tion may be overcome; while residence of two years or more is understood as
indefinite in any case ( 1991, 2) . But this is a rule of thumb; there is no reason to
insist on a single universal period for residence, so long as particular pohcies
respect the underlying notion of integration into the state society. In the case of
demands for a period of residence much longer than this, however, the onus
should be on demonstrating how a longer period of residence is necessary to
secure the integration of the persons in question.

60 Here I follow Robert Dahl’s insightful discussion of the problem of inclusion
(1989, 119-31). After identifying full democratic inclusion as a “categorical
right,” he modifies this claim, concluding that “the demos must include all adult
members of the association [i.e., those subject to a government and its laws]
except transients and persons proved to be mentally defective” (129). I have
addressed the problem of transients; as to mentally defective persons, it seems to
me that, particularly in the case of those capable of pohtical participation, we
should be slow to conclude that they do not possess the pohtical judgment requi¬
site for inclusion in the pohty.

61 An argument arriving at similar conclusions is provided by Habermas (1994,
140-42; 1995, 276). For an attempt to grapple with the problem of how to
develop criteria for deciding among too many qualified apphcants for admission
to a state, see Gunsteren 1988, 740-41. His account makes clear the internal link
between the modern notion of citizenship and human rights.

62 A persuasive analysis of the difficulties involved in justifying exclusionary pohcies
in the interest of “pubhc order” is provided by Joseph Carens (1992, 28-34) . On
the philosophical poverty of both hberal and communitarian resources for justify¬
ing exclusionary admissions practices, see Booth 1997. The case of Proposition
187 in California furnishes an example of the ethicahy problematic consequences
of excluding residents from the rights of membership.

63 One might argue that admitting a large group of ihegal residents to citizenship
would impose a financial burden that would derail the national economy, for after

196 Notes to Chapter 4

all citizenship is, among other things, a commodity worth a good deal of money
in terms of social services and other benefits. But this argument is gready weak¬
ened when one considers that even illegal immigrants are in many countries
eligible for social services, that as laborers they often represent an economic boon
rather than drain, and that as citizens they pay more taxes.

64 It might be made contingent on the ability to function in the language of the
state; the strength of such an argument would depend on whether or not the
national language itself aaed as a medium of domination. In any event, for the
majority of legal long-term residents this minimal criterion would not present a
problem.

65 As Walzer notes, sometimes the survival of a cultural group will depend on
stronger measures, and when such a group has a territorial base, it may have a
legitimate claim to political separation ( 1983, 43-44) .

66 This crucial point is ignored by Annette Baier in her otherwise illuminating
“Some Virtues of Resident Alienage” ( 1 992 ) .

67 RavTnond Aron has argued that so long as Europe has not become a single
integrated megastate, “there are no such animals as ‘European citizens’” ( 1974,
653 ) . Elizabeth Meehan ( 1993 ), on the other hand, makes the case that a Euro¬
pean citizenship similar to that of the Roman Empire is emerging alongside, or
above, the traditional national citizenships of eu members.

68 But see Walker and Mendlovitz 1990 on the imprecision of such concepts as
internationalization, globalization, and interdependence.

Chapter Five: Citizenship and Group Rights

1 As a result, the concerns of Walzer and others with whether or not citizenship is
open are not here relevant.

2 In this thin sense, citizenship arguably includes the right to remain in the state
and not be deported, although contexts are readily imaginable where this right
would be construed as alienable by the state. On the notion of citizenship as an
empty category, see Makarov 1971 ■

3 Walzer makes a similar point in his discussion of the Athenian metoikia. He argues
that perhaps in Greek city-states, but certainly in contemporary democracies,
there is “no conceptual barrier to the extension of citizenship” ( 1983, 55).

4 Whether military service should be required, and whether, if so, it may be re¬
quired of men only are complicated questions I can not go into here, other than
to note that the military service requirement remains a point of controversy in
Germany.

5 An example of such a strateg}' is Veit Bader’s argument that “democratic citizen¬
ship ought to be disentangled from citizenship as state membership” ( 1 995, 224 ) .

Notes to Chapter 5 1 9 7

He cites as a warrant Habermas’s contentions regarding the conceptual indepen¬
dence of republicanism and nationalism ( 1992) .

6 The second requirement is partially dependent on the first one: The decision
never to move back to one’s country of origin would not be of such moment if
namralization did not require the forfeiture of one’s native citizenship and accom¬
panying rights to, for instance, inheritance and private property.

7 On the international human rights to leave the country and to change one’s
nationality (arts. 13 and 15 of the Universal Declaration), see Whelan 1981.

8 See chap. 2, n. 27.

9 For a list of thirty-three such countries, see Rau 1990, 200-204.

1 0 This process has been fully documented in the case of the Turkish German minor¬
ity by Ertekin Ozcan ( 1 989 ) .

1 1 An example is the loss of property and inheritance rights that has been incurred by
Turks who have taken up German citizenship. It is interesting to note that, in
recent years, Turkey has hit on a legal stratagem for circumventing restrictions on
dual citizenship for Turks in Germany. Turkish nationals who give up their cit¬
izenship in order to become naturalized in Germany may have their former cit¬
izenship automatically reinstated at the Turkish consulate. The German govern¬
ment has expressed its intention to close the legal loophole that makes this
practice possible {InformationsbriefAuslandemcht 1995 no. 1:43-44).

12 A similar policy is in place in the U.K. ( Hammar 1 990 ) .

13 Carens identifies the relevant principle here as “the longer the presence, the
stronger the claim to membership and hence the stronger the claim to citizen¬
ship” (1989, 42). Both Carens (38) and Walzer (1983, 58-59) hold that the
terms of the labor contract agreed to by guestworkers eventually cease to justify a
subordinate stams for them. I am inchned to agree with them; it is worth noting,
though, that the reasons for this development are not mainly contractual, but
rather dictated by broader criteria of justice.

14 A noteworthy effort in this area is Hans Tremmel’s painstaking analysis of Ger¬
many’s asylum pohcy from the standpoint of Christian social ethics ( 1992) .

15 Habermas has argued that ethnic- cultural criteria are not appropriate for the
immigration policy of a country — such as, arguably, Germany— whose consti¬
tution is premised on universal human rights. Because such states invest their
identity in their political, as opposed to their ethnic, culture, all that they may
rightly require of immigrants is \ht\T political acculturation; fundamentahsts, con¬
sequently, may be turned away (1995, 276-79; 1994, 132-42). It seems to me,
however, that even highly liberal democratic cultures are not in practice separable
from particularistic forms of life, and there may hence be pragmatic grounds for
at least slightly favoring prospective immigrants who share in what Habermas
terms the “ethical-cultural” form of life of the community.

198 Notes to Chapter 5

1 6 Some proposals for German and European immigration policies are presented in
Apel 1992; Schiffer 1992; Winkler 1992; Cohn-Bendit 1993; Rittstieg 1993;
Schmalz-Jacobsen et al. 1993; Weber 1993; 2nd Bunz and Neuenfeld 1994.

1 7 Distinguishing among different npes of refugees is a complicated issue that ex¬
tends beyond the scope of this study. Nonetheless, we should note that from a
normative perspective, the conventional legal distinctions between political refu¬
gees, humanitarian refugees, and economic refugees are difficult to sustain due to
the interpenetration in practice of political, militarv', economic, and other fac¬
tors inducing flight. Ethically, it makes more sense to speak of a continuum of
grounds for flight, ranging from focused political persecution to more subde
forms of oppression, including official negligence and economic deprivation. As
with the concept of domination, being a refugee is something most readily estab¬
lished in phenomenological terms.

18 For an answer in the negative, see Schuck and Smith 1985.

19 For a very helpful discussion of equality, see Rae et al. 1989. Perhaps the only
shortcoming of this treatment is that it does not take full account of corporate as
opposed to collective equalities.

20 On the history of minority' rights agreements, see Hannum 1 989; and Rubin and
Laqueur 1989, 125-60.

21 Article 27 of the UN International Covenant on Civ'O and Political Rights, for
example, guarantees that “persons belonging to [ethnic, religious, or linguistic]
minorities shall not be denied the right, in community with other members of
their group, to enjoy their own culture, to profess and practice their own religion,
or to use their own language.”

22 In, for example, the International Convention on the Prevention and Punishment
of the Crime of Genocide ( 1 948 ) .

23 This issue is taken up primarily in the International Labor Organization’s Indige¬
nous and Tribal Populations Convention ( 1 947 ) , and through the aaivities of the
Working Group on Indigenous Populations of the Sub-Commission on Preven¬
tion of Discrimination and Protection of Minorities, which has produced a draft
of a Universal Declaration on Indigenous Rights ( 1988).

24 For a collection of views in the debate benveen “liberal” and “commimitarian”
political theorists, see Sandel 1984. On the importance of religious communities,
see Hauerwas 1981.

25 One classic view, articulated most prominently by Gierke (1957), sees groups as
persons possessing a sort of moral subjectivity that entitles them to rights. The
idea that groups are entities with an ontological status separable from that of indi¬
viduals is advanced in different forms by Fiss (1976), Van Dyke ( 1985), Garet
(1983), and the Volks^ruppenrechte school best exemplified by Veiter (1970). Vari¬
ous formulations of the view that groups consist fundamentally in relations

Notes to Chapter 5 i99

among their members are to be found in Raz 1986; May 1987; Kymlicka 1989;
Nino 1991; and Kukathas 1992. An interesting attempt at marking out a middle
ground is made by Hill (1993).

26 There is a superficial sense in which all rights are group rights, for rights always
apply to some class of beneficiaries (with the exception of the genre of transferable
rights — rights in m— denoting sole possession, e.g., copyrights). However, I
use group rights in opposition to the notion of individual rights, with the differ¬
ence residing in the nature of the class of beneficiaries that is said to enjoy a right.

27 May (1987) also considers the rights-claims of smaller groups such as cor¬
porations.

28 Cf Van Dyke’s identification of nine standards for assessing the strength of claims
to group rights (1985,213-15).

29 The Germans may have had a stronger claim in the last century, when there was a
movement in support of equal status for the German language with English (Van
Dyke 1985, 45)-

3 0 Carens (1990) makes a similar point about the connections between domination,
equahty, and the morahty of differential treatment in the context of a discussion of
African Americans. His analysis of how affirmative action is justified by overt and
subtle forms of racism is echoed by Walzer in a reconsideration of the theory of
complex equahty ( 1993 ) .

3 1 See the treatment of internal and external rights of autonomy, pp. 165-66. For the
development of a similar distinction between negative duties (for example, toler¬
ance, nondiscrimination) of the state toward minorities and positive ones (for
example, preservation of language, special pohtical representation), see Cho-
lewinski 1988.

32 For a seminal treatment blending philosophical and psychological analysis, see
Merleau-Ponty 1962, especially 434-56. For an account of how ethnicity and
social and cultural constraints affea moral development, see Cortese 1990.

33 Cf Baubock 1994, 265-91. Also in this regard. Iris Marion Young usefuUy distin¬
guishes among aggregates, associations, and social groups ( 1990, 43-48).

34 Theorists such as Gierke (1957), Veiter (1970), Caret (1983), Van Dyke (1985),
May ( 1987), and Freeman ( 1995) insist that corporate conceptions of the subject
of rights are required by situations in which irreducibly communal goods are at
stake, while Waldron ( 1993 ) more cautiously ahows that such a formulation may
make sense. The view that group rights may properly be ascribed only to the
members of coUectivities is advanced by Fiss (1976), Cohen et al. (1977), Raz
( 1986), and Kymlicka ( 1989). Critics of group rights who argue that individual
rights alone suffice to protect group interests include Glazer (1975), Galston
(1980), Van den Berghe (1981), Donnelly (1989), andNino (1991).

35 Will Kymhcka provides a different typology of “group-differentiated” rights

200 Notes to Chapter 5

( 1995, 26-33). He includes self-government rights, “polyethnic” rights, and spe¬
cial representation rights.

36 A particular instance of the broad distinaion drawn here beween rights of auton¬
omy and rights of nondomination may be found in David Little’s analysis of
religious human rights in terms of “the right of nondiscrimination” and “the
right of free exercise” ( 1995, 4-6) .

37 For a skeptical %acw of this whole enterprise, see Dunn 1988.

38 See K\Tnlicka’s discussion ( 1989, 1 37-6i, 182-205). Such cases reflect an aware¬
ness of the danger, pointed out by Dench ( 1 986, 1 5 ) and others, that arises when,
as often occurs, a structure of individual rights functions to enforce the domi¬
nance of majority groups.

39 Compare the discussions in Sanders 1991, 383-86; and Kvinlicka 1995, 152-72.
As these authors note, it can at times be difficult to specify what precisely con¬
stitutes gender discrimination.

40 Wirsing ( 1983, 178-82) analras a range of such strategies.

41 A broad discussion of legal strategies for addressing the problem of equality
among social groups appears in Stopp 1994.

42 Antidiscrimination laws arc already on the books in other European countries,
including Great Britain and the Netherlands. On the prospects for a German law,
see Mager 1992, Just et al. 1993, and VVoUenschlager 1994.

43 Affirmative action — the collective rights strategy of linking preferences among
otherwise equivalent individuals with membership in particular disadvantaged
groups — should not be confused with the corporate rights strategies of fixing
minority quotas or granting set-asides, as has unfortunately all too often been the
case in debates in the United States. Affirmativ'e action in this narrow' sense is
merely the least thoroughgoing among a range of possible models for promoting
equality. Likew ise, positive discrimination should not be confused w'ith reverse
discrimination, a rather sloppy misnomer suggesting an equivalency between
traditional forms of gender- or race-based oppression and current measures
aimed at promoting the status of disadv'antaged groups vis-a-vis the broader
society. On the controversial topic of affirmative action, see the essays in Cohen et
al. 1977.

44 On the situation in German cities, see Bischoff and Teubner 1991, 1 38. In regard
to the difficulties inv’olved in such a policy, the trav'ails of the American experience
with desegregation and busing might be instructiv'e. See, for example, Lukas
1985.

45 See Nermin Abadan-Unat on the phenomenon of “re-mrkization” as a response
to subordination (1985, 16-17).

46 It is for this reason that Kvinhcka’s (1989) liberal defense of an individual right to
cultural membership is ultimately unsatisfaaoty. A right to belong to a culture —

Notes to Chapter 5 201

any culture — cannot substitute for the right of specific cultural groups to exist.
The idea that people are not deprived of their rights when their culture is de¬
stroyed, so long as they are provided with membership in a surrogate culture, fails
to reeognize that to remove unwilling subjects from their cultural point of refer¬
ence is almost certainly to do them serious harm.

47 Some background on these two issues is provided in Rist 1979.

48 This right is perhaps better formulated as a collective right, that is, as the right of
each member to be educated in his or her language as well as in German. In either
form, it is a right that seems to be a demand agreed upon by immigrants of all
political stripes in Germany. For data on Turkish groups, see Ozcan 1989, 348.

49 Some of the more reasonable proposals in the German debate involve providing
native language instruction beginning in kindergarten, offering five or six hours
per week through secondary school of native-language, full-credit courses ad¬
dressing topics in pupils’ native culture, and establishing a full native-language
curriculum of no more than two years aimed at preparing new immigrants for
German-language classes. For evaluations of varying strategies, see Ozcan 1989;
Bischoff and Teubner 1991.

50 See especially Khoury 1985. For a favorable assessment of the possibilities for
gender equahty in Islam, see Hassan 1991 •

51 Unesco’s Convention against Discrimination in Education ( i960), for example,
espouses the principle that in the interest of equality, “it is acceptable to classify
children by language for purposes of education” (cited in Van Dyke 1985, 21).
See also the excerpt from the UN Report on the Protection of Minorities, in
Rubin and Laqueur 1989, 157-59.

52 Walzer has recently made a similar point, arguing that “the self is . . . naturally
divided. . . . Under conditions of security ... I will identify myself with more than
one tribe. ... So I can choose to be an American, a Jew, an Easterner, an intellec¬
tual, a professor. Imagine a similar multiphcation of identities around the world,
and the world begins to look like a less dangerous place” (1994b, 82) .

53 On this point, see Wilpert 1988b, the various essays in Esser 1983, and Ruth
Mandel’s reflections on the significance of Turkish headscarves ( 1989)-

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Index

Adams, John, 90

Admission: to democratic states, 118,
124, 126-27; “second,” 122
Affirmative action, 51, 53, 148, 162, 168,
199 n.30, 200 n.43

Agency, 91, 130, 192 n. 38; social, 179
n.2

Aliens Act of 1991, 36, 57, 67, 179
n.33

American Revolution, loi
Amnesty International, 193 n.49
Anderson, Benedict, 85, 175 n.7
Arendt, Hannah, 80, 90, 189 n.23
Aristotle, 77-79, 89, 92-93, 96, 102,
no, 149

Armstrong, John, 86
Association, freedom of, 127
Auslcinder, 10, 22-24, 51; subordinate
membership status of, 26, 32. See also
Foreign workers; Inlander
Ausldnderfeindlichkeit, 33
Aussiedler, 25, 1770.23, 178 n.29
Autonomy, 94-95, 99, 1 16

Bade, Klaus, 180 n.8
Baier, Annette, 196 n.66
Beitz, Charles, 99, 184 n.7
Betroffenheit, 59, 123

Bickel, Alexander, 1 06
Bodin, Jean, 84
Bossuet, Jacques, 84
Boundary making, 1 1
Brubaker, Wilham Rogers, 175 n.8, 176
n.17, 180 n.s
Burke, Edmund, 90

Capitahsm, 9, 18

Carens, Joseph, 194 n.58, 195 n.62, 197
n.13, 199 n.30

Catholic social tradition, 189 n.24
Chaney, Elsa, 185 n. 19
Charlemagne, 1 1
China, 12, 83

Choice position, 74-75, 94-99, 1 1 3
Christian Democratic Union (CDU),
42, 45, 50, 55, 58-59, 64
Christian Social Union (CSU), 42, 55,
59, 64
Cicero, 90

Citizenship, ix, 1-6, 173 n.2; “active”
versus “dormant,” 68, 154-56; an¬
thropological images of, 80-83; 2s-
criptive grounds of, 140-41; at¬
tribution of, 2; concept of, 173 n.2;
consensual grounds of, 141 ; dual cit¬
izenship, 65-72, 154-56; dual nature

224 Index

Citizenship (cont.)

of, 127; equal, 113, 160-61; as ethical
question, 2-3, 1 12- 13; in Greek city-
states, 40, 79, 89-90, 93, 102; jus san¬
guinis, 22, 24, 26, 69, 183 n.2; jus soli,
67, 71, 156-57; price of, 124, 160; as
requirement for voting rights, 60-61 ;
as right of residents, 122-24, 150-53,
156-58; Roman, 80, 102; “social,” 175
n.5; traditions of thought on, 79-80;
as transnational concern, 105-8, 126-
29; t\v'o senses of, 3. See also Member¬
ship; Political membership
Citizenship Law of 1913, 24, 25, 66, 153,
157; parliamentary debate over, 177
n.2i

Citizenship polic}', German, 20-26, 65-
72, 148-60

Citizenship without Consent, 140
Cmr«j-building, 20-26, 32, 39, 167; de¬
fined, 10; and legal disadvantage, 35-
37

Closure position, 73-74, 84-89
Coexistence position, 75, 99-104, 113
Coke, Edward, 84

Communal self, 80-84, 108-10, 113;
and closure position, 84; and coexis¬
tence position, 103; and concept of
so\’ereignty, 82; and culture position,
89, 99; and membership policy, 125,
144, 162

Competence, notion of, 137
Consent, 94, 122, 140-43
Constitutional patriotism, 72, 102
Contraa, 82, 96
Conze, Werner, 12

Cosmopolitan position, 75-76, 104-9
Council on Security' and Cooperation in
Europe (CSCE), 162
Culture position, 74, 89-94, 1 1 3

Dahl, Robert, 92, 195 n.6o
Democracy, 78-79, 83, 106, 1 12, 145; in
ancient Greece, 92-93; nationalist
conception of, 59-60, 62; and politi¬
cal membership, 126-28, 137-38,

149; and principle of political justice
in Walzer, 123-24; “subjection” no¬
tion of, 59, 62

Distributive justice, 1 16-18, 125; states
as context for, 1 1 6
Domination, 130-31, 191 n.36, 192
n.38, 192 n.40; and false conscious¬
ness, 192 n.41; phenomenological
structure of, 132-33. See also
Nondomination

Enlightenment, the, 12, 14, 76, 78
Equality, 4, 156; as absence of domina¬
tion, 1 34; “bounded,” 40; “complex,”

1 1 7- 1 8, 1 34, 1 99 n. 30; embodied by
human rights, 1 34; three models of,
162

European integration, 144
European Union, 36, 44, 45, 60, 64, 107,
144-45, 160, 196 n. 67

Eederal Expellee Law of 1953, 25
Feinberg, Joel, 91
Fichte, Johann Gottiieb, 12
Filmer, Robert, 84
Foreign workers; discrimination
against, 4, 7, 32-35, 161; exclusion
from political membership, 21, 173
n.4; “ghettoization” of, 35-37; his¬
tory' of, in Germany, 18-19, 24, 28-
30, 1 76 n. 1 3 ; and local voting rights,
58-65; membership in European
Union, benefits of, 36, 44, 45, 60; so¬
cietal consequences of, 3 1 . See also
Ausldnder; “Guestworkers”

Index 225

France, 11-12, 145, 175 n.8, 17611.17
Free Democratic Party (FDP), 42-43,
50, 54-55, 58

French Revolution, 12, loi

Geissler, Heiner, 50
Gellner, Ernest, 85

German Basic Law, 25-26, 30, 153, 170;

and local voting rights, 62-64
German Federation of Trade and Labor
Unions (DGB),43
Gierke, Otto, 86, 198 n.25
Goethe, Johann Wolfgang von, 12
Greens, the, 42-43, 58, 64
Group rights, ix, 115-16, 161-71; col¬
lective, 148, 168; corporate, 148, 165;
internal, 166; moral foundations of,
162-65; and religious freedom, 194
n.52; subject of, 199 n.34; versus indi¬
vidual rights, 166, 199 n.26. See also
Human rights

Groups: as constitutive of identity and
agency, 164; moral character of, 164-
65; ontological status of, 71, 73, 85-
87, 198 n.25

“Guestworkers,” i, 4, 31, 46; compared
to metics, 90, 122; German policy to¬
ward, 41-45, 54-58; integration of,
47-50; terminology regarding, 178
n.25. See also Foreign workers

Habermas, Jurgen, 72, 185 n.23, 186
n.29, 197 n.15
Hammar, Thomas, 155
Hegel, Georg Wilhelm Friedrich, 1 3, 97,
no, 175 n.io

Heidelberg Manifesto, 73, 86
Herder, Johann Gottfried von, 12, 84
Historikerstreit, 16
Hobsbawm, Eric, 85

Hoffmann, Lutz, 14, 53
Holocaust, 32, 179 n.2
Holy Roman Empire, 1 1
Homogeneity, cultural, 125
Hooker, Richard, 84
Human rights, loi, 129-30, 136, 145-
46; applied to groups, 1 34-35; “ba¬
sic,” 134; conflicts involving, 194 n. 55;
defined, 135; human nature as basis
for, 130, 189 n. 24; individualist bias
regarding, 194 n.54; and political rep¬
resentation, 75-76; positive versus
negative, 194 n.56; as rights to non¬
domination and self-determination,

1 15, 129-35. See also Group rights;
Political membership: as human
right

Ignatieff, Michael, 85
Immigration: Germany as country of,
45-47, 180 n.8; Habermas on, 197
n.15; illegal immigration, 159, 195
n.63; Walzer on, 1 19-22
Inequality, 112-13
Inlander: distinguished from

10, 21, 22-27; rights of, 23-24. See
AsoAusldnder

Integration versus assimilation, 47-50,
180 n.9
Inuits, 167
Isay, Ernst, 23
Islam, 169-71

Japanese Americans, internment of,

155

Jefferson, Thomas, 95
Jews, 33, 177 n.22; exclusion from Ger¬
man civil service, 24
Junker class, 17
Jus£ientium, loi

226 Index

Justice: constitutive, x; political, princi¬
ple of, 123-24; and social meaning,
116-17, 125; universalist notion of,
lOi.See also Distributive justice

Kaiserreicb, 14, 17-18, 23
Kant, Immanuel, 105, 186 n.26
Kulturkampf, 13
Kultumation, 9, 14, 26, 150
Kymlicka, Will, 184 n. 12, 194 n. 54, 199
n.35, 200 n.46

Language instruction, right to, 169, 201
n.48

Locke, John, 95, no, 142

MacIntyre, Alasdair, 78, 91
Marx, Karl, 105, no
Membership: criteria for, internal and
external, 188 n. 12; equal, 167-71;
German, histoty' of, 8-27; and ques¬
tion of agency, 38; Walzer on, 1 14.

See also Citizenship; Political mem¬
bership

Membership debates: as contest be¬
tween nationalism and republicanism,
72; empirical aspects of, 112; and
moral arguments versus moral prefer¬
ences, 183 n.i; moral versus ethical as-
peas, 174 n. 6

Metics. See “Guestworkers”: compared
to metics

Migrant workers. See Foreign workers
Migration, 2, 157-60
Mill, John Stuart, no, 125
Multiculturalism, x
Multicultural society, Germany as, 27,
31,50-54, 56, 58, 148, 171
Muslims. See Islam
Mutual aid, principle of, 118-22

Napoleon I (Bonaparte), 12
Nationalism: German versus French,

175 n.8; paradoxes of, 175 n.7; versus
republicanism, 72

National Socialism, 19, 25, 31, 71, 177
n.22

Nation-building, 10-16, 32; and ethnic
discrimination, 32-33
Nation-state principle, 54, 84-87, 149;

model of citizen, 1 80 n.5
Naturalism, 113-14; in Walzer, 117-18
Naturalization: and consent, 140-43;
German policy regarding, 24, 65-67,
148-53; Walzer on, 122-25
Natural law, 82, loi
Nazism. See National Socialism
Nondomination: as group right, 1 1 5,
135, 161, 164; as primaty' norm of hu¬
man rights, 135, 137-40, 147, 159- See
also Domination
North German Federation, 23

Party' of Democratic Socialism ( PDS ) ,
43

Plato, 92, 96

Poles, 13, 33; treatment of, 176 n. 13
Political asylum, 157, 177 n. 24
Political justice, principle of, 1 1 8, 1 22-24
Political membership, 108, 125; five con¬
ceptions of, 72-76; as a good, 83, 1 16,
143; two competing images of, 65;
understood as a human right, 75, 94,
103-5, 108, 1 1 5, 136-40, 142, 149,

189 n.23. See also Citizenship; Mem¬
bership

Politics (Aristotle), 77

Prussia, 12-13, 16-17, 22-23, i75 n.io

Quebecois, 169, 1940.55
Qur’an courses, 1 70

Index 227

Ranke, Leopold von, 1 3
Rawls, John, 190 n.26
Rechtsstaat, 16, 26

Refugees, 159-60; distinctions regard¬
ing, 198 n.17

Religious education, 44, 170
Republikaner Party, 33, 42, 18 1 n. 14
Rights, 3-4; charaaerof, 133; and
equality, 130; individual, 148;
and problem of context, 107-8.

See also Group rights; Human
rights

Rokkan, Stein, 17, 20
Roman Empire, 93, 196 n.67
Romantic Era, 1 3, 78
Rousseau, Jean-Jacques, 91, 95, loi,

105, no

Saint-Simon, Comte de, 96
Savigny, Friedrich Karl von, 1 3
Schiller, Johann Christoph Friedrich
von, 12

Schuck, Peter, 140
Schulte, Axel, 50
Scruton, Roger, 85

Self-determination: as group right, 162;
right to, 106, 1 15, 129, 138-40; as
subsidiary norm of human rights, 135,
139, 164; WaJzer on, 1 19
Smith, Rogers, 140
Social Democratic Party of Germany
(SPD), 42, 50, 54, 57-58, 64
Social goods, meaning of, 187 n.7, 188
n.15

Socioeconomic inequahty, 34-35
Socrates, 98
Sophists, 94

Sovereignty, concept of, 82
Spheres of Justice (Walzer), 5, 114, 116
Staatsvolk, 63

State-building, 10, 15-20, 32; and so¬
cioeconomic inequality, 34-35
State society, 15, 175 n. 3
“Status Germans,” 62, 153, 177 n.i8
Stoics, 1 01, 105

Tamir, Yael, 184 n.12

TiUy, Charles, 12

Treaty of Westphalia, 162

Troeltsch, Ernst, 14

Turkish minority in Germany, 29-33,

36, 38, 56, 67, 161, 163, 197 n.i I

Uberfremdunpis^efahr, 13
United Nations, 162
United States, 157, 159; civil rights
movement in, 160
Universal Declaration of Human
Rights, 133, 189 n.24
Universal self, 80-84, 109-10; and coex¬
istence position, 99-101; and culture
position, 94; and membership pohcy,
125, 143, 162; and natural law, 82;
and notion of justice, loi

Verrechtlichunp, 16-17, i9
Verstaatlichun0, 16-17, 19
Vertriebene, 28, 153
Viemamese minority in Germany, 3 1
Volk, 12-14, 20; current legal definition
of, 26; and voting rights, 62-63
Voluntary self, 80-84, 108-10; and
choice position, 94-96; and coexis¬
tence position, 99-100; and consent,
140; and contract, 82; and culture
position, 89; and membership pohcy,
125, 144, 162

Voting rights for foreigners, 58-65; con¬
stitutional imphcations of, 61-64; in

228 Index

Voting rights for foreigners {cont. )
Europe, 1 8 1 n. 1 5; as right to equality,
63-64

Walzer, Michael, 5, 96, 98, 109-25,

1 27, 1 30, 1 34, 1 37, 149; on “com¬
plex equality,” 1 1 7- 1 8; on consent,

1 40-43; on distinction bem^een domi¬

nance and monopoly, 1 1 7; on distribu¬
tive justice, 1 1 6- 1 8; on egalitarianism,
191 n.37; on immigration, 1 19-22; on
naturalization, 1 22-25 ; on principle of
political justice, 1 22-24
Weimar Republic, 14
World War I, 1 4, 1 8, 24
World War II, 25

William A. Barbieri Jr. is Assistant Professor of Social Ethics at the
Cathohc University of America.

Library of Congress Cataloging-in-Pubhcation Data
Barbieri, William A.

Ethics of citizenship : immigration and group rights in Germany /
Wilham A. Barbieri, Jr.
p. cm.

Includes bibhographical references and index.

ISBN 0-8223-2057-6 (cloth : alk. paper). — isbn 0-8223-2071-1
(pbk. : alk. paper)

I . Ahen labor — Germany — Social conditions. 2. Immigrants —
Germany — Social conditions. 3 . Political rights — Germany.

I. Title.

HD8458.A2B28 1998

323.3'29i— dc2i 97-40979

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